How much money was awarded in case 4542711?

Cleaning: $914.25 awarded to landlord; Cleaning: $1,500.00 awarded to landlord; Property Damage: $600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $471.50 awarded to landlord; Meth Testing: $287.44 awarded to landlord; Property Damage: $209.30 awarded to landlord; Property Damage: $1,200.00 awarded to landlord; Replace Furnishings: Carpet: $1,650.00 awarded to landlord; Rubbish Removal: $573.85 awarded to landlord; Smoke Alarms: $500.00 awarded to landlord; Water Charges To February 2023: $572.94 awarded to landlord

What type of tenancy dispute was case 4542711?

The primary dispute was Cleanliness. Related themes: Property damage, Exemplary damages, Smoke alarms.

Where can I read the official tribunal order for case 4542711?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9480690-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4542711?

Cleaning: $914.25 awarded to landlord; Cleaning: $1,500.00 awarded to landlord; Property Damage: $600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $471.50 awarded to landlord; Meth Testing: $287.44 awarded to landlord; Property Damage: $209.30 awarded to landlord; Property Damage: $1,200.00 awarded to landlord; Replace Furnishings: Carpet: $1,650.00 awarded to landlord; Rubbish Removal: $573.85 awarded to landlord; Smoke Alarms: $500.00 awarded to landlord; Water Charges To February 2023: $572.94 awarded to landlord

What type of tenancy dispute was case 4542711?

The primary dispute was Cleanliness. Related themes: Property damage, Exemplary damages, Smoke alarms.

Where can I read the official tribunal order for case 4542711?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9480690-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4542711 — Cleanliness

Q: What was Tenancy Tribunal case 4542711 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4542711 — net $8,311.70 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Water charges to February 2023	$572.94	Water charges to February 2023
Rubbish removal	$573.85	Rubbish removal
Lawns and Garden work	$471.50	Lawns and Garden work
Lock/key replacement	$209.30	Lock/key replacement
Replace furnishings: Carpet	$1,650.00	Replace furnishings: Carpet
Repairs to walls and shelves	$1,200.00	Repairs to walls and shelves
Meth testing	$287.44	Meth testing
Carpet Cleaning	$914.25	Carpet Cleaning
Cleaning	$1,500.00	Cleaning
__________________________________________________________________________________ 45427112 Exemplary damages – use for	$600.00	__________________________________________________________________________________ 45427112 Exemplary damages – use for
Exemplary damages – smoke alarms	$500.00	Exemplary damages – smoke alarms
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,311.70
Total payable by Tenant to Landlord	$8,311.70

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.

[The tenant/s] must pay Barfoot & Thompson Limited As Agent For James Chen $8,311.70 immediately, being sums in the table below for which [Tenant 2] is severally liable.

[The tenant/s] must pay Barfoot & Thompson Limited As Agent For James Chen $8,311.70 immediately, being joint liability for water charges, exemplary damages for interference with means of escape from fire and the filing fee.

The Bond Centre is to pay the remaining bond of $188.02 ([Bond number suppressed]) to Barfoot & Thompson Limited As Agent For James Chen immediately.

Reasons

Both parties attended the hearing on 20 July 2023. Only the landlord attended the second hearing on 21 September 2023.

The landlord has applied for outgoings, compensation, refund of the bond, exemplary damages and reimbursement of the filing fee following the end of the tenancy. Background

A summary of the background facts is set out below: • The parties entered into a residential tenancy agreement for a fixed term from 5 August 2022 to 7 August 2023. • Inspections were performed on 25 July 2022, 2 November 2022, 5 December 2022, and 18 February 2023. • On 5 November 2022 the first-named tenant, [Tenant 1], then 20 years old, was assaulted by her cousin. The assault happened at a family gathering. [Tenant 1] got into a heated argument with her cousin. She tried to escape by going to her car, but he tackled her to the ground. At hospital [Tenant 1] was diagnosed with a minor head injury, an open wound to the elbow, and abrasions to the knee, foot, and hand. • Trespass notices were served on the cousin and one other family member dated 8 November 2022, warning them to stay off the premises. The notice served on the cousin said it was issued “...because of disorderly behaviours, social media bullying, threatening and physically assaulting me”. The notice served on the other family member said it was issued “...because of alleged threats against me, social media bullying and defaming my character”. • [Tenant 1] attended a counselling appointment on 7 December 2022 related to the psychological effects of the assault and bullying. • The inspection report on 5 December 2022 indicated that the property was clean and tidy (apart from an area in the bathroom needing a quick clean). It did not identify any damage by the tenants. • On 29 December 2022, [Tenant 1] emailed the landlord requesting that her name be removed from the tenancy agreement. She had spoken to the other tenant, and he was aware that she was moving and would stay at the tenancy: “The reason why I am moving is due to the continuous decline in my mental health and wellbeing. As suggested by my counsellor, it is in my best interest for me to move back up with my parents to focus on my wellbeing.” • [Tenant 1] vacated the property on 5 January 2023. • The landlord responded to [Tenant 1]’s email on 10 January 2023. There was a pending Tribunal case for rent arrears, and it would not be possible to remove [Tenant 1] from the tenancy agreement until this was resolved. • The Tribunal terminated the tenancy for rent arrears on 14 February 2023. An eviction followed on 18 February 2023. • At the exit inspection the property was found to be damaged and needed significant cleaning and rubbish removal. • A methamphetamine screening test was performed at the property on 22 February 2023. A 10-sample composite test showed an average of 0.2ug of methamphetamine (meaning that, if all the residue was in one sample location, the highest reading would be 2.0ug/100cm2 of methamphetamine). The test report concluded that this was consistent with consumption. Drug paraphernalia were found at the property after the tenancy. Relevant law

On 11 August 2021, section 56B was inserted in the Residential Tenancies Act 1986 (the Act). This provides that a tenant can withdraw from a tenancy by giving at least 2 days’ notice to the landlord, if the notice is accompanied by “qualifying evidence” that the tenant has been a victim of family violence while a tenant of the premises, and the notice is in the approved form and includes the prescribed information.

“Family violence” is defined by section 9 of the Family Violence Act 2018. It includes physical and psychological abuse inflicted against a person by another person with whom the victim is in a “family relationship”. The meaning of “family relationship” is defined over sections 12-14 and includes spouses and partners, family members, people who ordinarily share a household, and people in a close personal relationship. A “family member” is anyone related by blood, marriage, civil union, de facto partnership, or adoption. It also includes anyone who is a member of the person’s whanau or other culturally recognised family group.

Section 56B is supplemented by the Residential Tenancies (Termination For Physical Assault by Tenant and Withdrawal Following Family Violence) Regulations 2002. The Regulations prescribe the information to be included in the withdrawal notice, who can give a qualifying declaration, and what constitutes “qualifying evidence”. The Regulations came into force on 29 December 2022.

Section 85(2) of the Act provides that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter, and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Withdrawal from the tenancy

As noted above, [Tenant 1] informed the landlord that she was leaving on 29 December 2022 and vacated the property on 5 January 2023.

The inspection reports prior to that date do not show anything like the levels of damage and mess evident at the date of the final inspection. The issue is whether [Tenant 1] is jointly liable for all the cleaning, rubbish removal, and repair costs, despite vacating prior to serious breaches of the tenancy agreement.

The general principle is that tenants are jointly liable for breaches by other tenants (Harrison v Shields (DC Dunedin, MP435/00, 2 September 2002, Judge MacAskill)). The tenancy agreement reflected this principle. The general conditions, under the subheading “liability”, provide that the tenants agree they are jointly and severally liable to the landlord for any indebtedness or damages, costs, claims, expenses, losses incurred or received by the landlord, together with the costs of recovery.

When [Tenant 1] notified the landlord that she was leaving section 56B was in force, and the associated regulations came into effect on the same day. The landlord did not agree to remove [Tenant 1] from the tenancy and therefore, on a strict application of the law, unless she validly exercised a right of withdrawal, she remained jointly liable with the other tenant until 18 February 2023.

I have considered whether [Tenant 1]’s email was in substance a withdrawal notice. The email did not refer to family violence, but it did reference her mental health. Section 56B gives few clues as to the required content of a withdrawal notice, save that at least 2 days’ notice had to be given.

The Regulations provide that a notice under section 56B must give the name of the withdrawing tenant, the address of the premises to which the notice relates, and the date when the withdrawal will take effect. It would have been clear from her email who the tenant was and which tenancy it related to, but [Tenant 1] did not say when the withdrawal would take effect. It is clear from messages to friends at the time that she was intending to move out in 2 weeks.

Considering the purpose of section 56B (discussed further below) and the substantial merits and justice of the case (based on my finding that [Tenant 1] was a victim of family violence and left before the premises were damaged) I am satisfied that [Tenant 1] gave sufficient notice of her intention to withdraw from the tenancy following family violence. If a strict approach to the application of the requirements of the Regulations were taken, in my view it would undermine the purpose of the withdrawal rights contained in section 56B and lead to an unjust outcome.

I have considered the landlord’s submission that this conclusion opens the floodgates to tenants withdrawing from tenancies without complying with the necessary formalities. It would also deprive the landlord of a right of recovery against one of the tenants.

I see the force in these points, but the facts of this case are unusual. If [Tenant 1] had sought to exercise a right of withdrawal on 28 December 2022, as opposed to 29 December 2022, compliance with the legal technicalities in the Regulations would have been literally impossible, because they were not yet in existence.

As to depriving the landlord of a right of recovery, I consider it would not be in accordance with the substantial merits and justice of this case to impose liability on [Tenant 1] for damage which happened after she vacated, when, if properly advised, she could have validly exercised a right of withdrawal. She did attempt to remove herself from the tenancy because of domestic violence and in those circumstances, it would be unjust to hold that a right of withdrawal had to be exercised in strict compliance with section 56B and the Regulations.

The next issue is whether [Tenant 1] suffered family violence while a tenant of the premises.

In written submissions, the landlord did not dispute that what [Tenant 1] had said in her email was consistent with Regulation 8 (persons whose declarations are qualifying evidence) and Regulation 9 (types of qualifying evidence) but questioned whether Parliament intended for section 56B to cover all instances of family violence, or only family violence at the tenancy address. The submission was that the primary scenario considered by Parliament was the risk associated with a victim of family violence remaining legally bound to the premises, where the abuser was also likely to be living.

I agree with the landlord’s submission that section 56B was intended to provide a safety mechanism for victims of family violence, to enable expeditious withdrawal from a tenancy to avoid further abuse. However, I do not consider the ambit of section 56B was intended to be limited to family violence at the tenancy address.

The landlord helpfully provided excerpts from Hansard dated 4 August 2020, when the Residential Tenancies Amendment Act 2020 was presented for its second and third readings by the responsible Minister.

At the second reading, the Minister said that the principal aim of the amendment was to give the victim of family violence the ability to leave the tenancy as quickly as possible, to ensure their safety. Depending on the situation, “...the perpetrator may or may not be within the tenancy” (Vol 748/20436-7). Later, the Minister said that it was “...almost probable that the perpetrator of the violence might also be living at that property” (Vol 748/20440).

At the third reading, the Minister said (Vol 748/20442): “The bill also enables a victim of family violence to withdraw from a fixed or periodic tenancy speedily by giving their landlord two days’ notice, along with evidence of the family violence while on the premises. After the termination date, the tenant will not be liable for any further rent. These changes mean that victims have fewer barriers to exiting tenancies quickly in order to seek safety”.

In my view, while Parliament envisaged that the perpetrator of family violence would probably be living at the premises, section 56B also applies when they are not. The language of section 56B(1) (“...withdraw from the tenancy...if the tenant has been a victim of family violence while a tenant of the premises”) does not require any physical connection between the family violence and the residential premises. I consider it requires only a temporal connection between the tenancy and the family violence.

In any event, the connection goes further than that minimal requirement in this case. [Tenant 1] said her cousin and whanau were regular visitors to the house. When she left, it is reasonable to infer she wanted to avoid further visits. She was exiting the tenancy to seek safety.

I find that [Tenant 1] was a victim of family violence while a tenant of the premises. She was assaulted by a family member and possibly psychologically abused by another relative during the tenancy. The effect on her mental health was such that she sought to leave the property to avoid further harm.

Accepting, as I do, that [Tenant 1] left the property before significant damage was caused for which the landlord now claims compensation, her joint liability as tenant ended on 5 January 2023. This means she is not liable for the cleaning, rubbish removal or repair costs. There is no evidence indicating she knew about drug use at the property, and she denied seeing anyone using drugs. [Tenant 1] does, however, remain liable for water charges to the end of her tenancy, and at least one smoke alarm had been removed while she was a tenant. These claims are discussed below. Water charges

The landlord provided water invoices which prove the amount owing for the period July 2022 to 20 February 2023. The claim for water totalled $572.94.

I find that the tenants are jointly liable for $447.48 of these charges, but only the second-named tenant is liable for the water invoice from 19 January 2023 to 20 February 2023 of $125.16. Cleaning and rubbish removal

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. The tenant is required to replace worn out smoke alarm batteries during the tenancy. The tenant must also replace standard light bulbs.

The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. The landlord’s photographs show considerable staining to the carpets, and belongings and detritus scattered over the floor. The tenant’s personal items such as crockery, pots and pans, chairs, a bedhead, a vacuum cleaner, a microwave, a fan, and shelving were left behind and had to be removed. The property would have required general cleaning throughout following removal of the rubbish. I also accept that it was reasonable to clean the carpets to try and avoid having to replace them.

The garden was overgrown and needed tidying and mowing.

The tenant did not return the keys following the eviction. The locks had to be changed to secure the property. Damage to the premises

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission (sections 40 and 49B of the Act).

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or 4 weeks' rent.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent (or market rent). The insurance excess was $550.00, and the weekly rent was $730.00.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty (Guo v Korck [2019] NZHC 1541).

There was damage to the walls, shelves, and the heated towel rail at the end of the tenancy. The carpet had to be replaced in 3 bedrooms ($2,530.00). The damage is more than fair wear and tear.

The landlord submitted that the damage to the carpets was intentional. I find that the carpet staining and damage betrays a very careless rather than deliberate disregard for the property. I award $1,650.00 for the cost of replacement carpet (the insurance excess of $550.00 per room).

I find that the damage to the walls was caused carelessly. [Tenant 1] said she damaged the heated towel rail when she slipped on a wet floor and grabbed at the rail. I would not characterise this as lacking care but an instinctive reaction to avoid injury. The relevant invoice (for $1,380.00) does not itemise the various repairs. There was damage to the walls in the garage, living room, bedrooms, and hallway in addition to broken shelves in the garage and the towel rail. I award repair costs of $1,200.00. Exemplary damages – unlawful use and smoke alarms

Section 40(2)(b) of the Act provides that the tenant shall not use the premises, or permit the premises to be used, for any unlawful purpose. Contravention of this section is an unlawful act for which exemplary damages may be awarded.

Use of a residential property for the consumption of methamphetamine is use for an unlawful purpose. The landlord pointed to photographs of drug utensils, a bong, small plastic bags said to be consistent with the use and supply of methamphetamine, and the positive screening test. I find on the balance of probabilities that methamphetamine was consumed by the tenants or their visitors during the tenancy.

The landlord claimed exemplary damages of $900.00. Referring to the factors in section 109(3) of the Act, the landlord submitted that this was reasonable considering that drug use is an intentional act which in this instance had resulted in damage, the landlord had experienced hardship and had to pay for the cost of testing, and there is a clear public interest in dissuading tenants from consuming such drugs in residential properties.

I accept these submissions, although I note that methamphetamine was found below the level at which it is considered dangerous to human health. The landlord’s interest in recovering associated expenses can be met by an award of the methamphetamine testing costs ($287.44) as compensation for the breach of section 40(2)(b) of the Act.

The maximum exemplary damages that can be awarded for using the premises for an unlawful purpose is $1,800.00. After considering section 109(3) of the Act, I find that it would be just to award exemplary damages of $600.00.

[Tenant 1] is not liable for these methamphetamine-related awards. I accept her evidence that she did not see drug-consumption at the property. It follows that she did not use the premises, or permit the premises to be used, for an unlawful purpose. It is probable that drug use occurred after she left.

It is an unlawful act to interfere with or render inoperative any means of escape from fire as defined in the Building Act 2004 (section 40(2)(ab) of the Act). The Tribunal has held, and it is now well-settled law, that interference with smoke alarms constitutes such an unlawful act (Triple Kay Property Management Ltd v Smaill-Jenkins (TT Christchurch, 13/00142/CH, 7 February 2013)).

The entry inspection report identified smoke alarms in the entry, lounge, dining room, kitchen, and bedroom 1. They do not look to be present in bedrooms 2 and 3. The exit inspection photographs show a smoke alarm missing in the kitchen, although it does not state that any smoke alarms were missing. The earlier inspection report on 5 December 2022 noted that the smoke alarms in bedrooms 1 and 2 had been taken down.

Removing at least 2 smoke alarms presented a clear health and safety risk to the occupants and a financial risk to the owner’s investment. There were, however, still working smoke alarms in the property.

The maximum sum that can be awarded for interference with means of escape from fire is $1,500.00. There is a clear public interest in dissuading tenants from removing smoke alarms which are essential to give occupants warning of fire. After considering the factors in section 109(3) of the Act, I award exemplary damages of $500.00 against both tenants jointly. Filing fee and suppression

The landlord’s application has been partly successful. It is appropriate to award the filing fee. The tenants are jointly liable for the filing fee.

The landlord did not seek suppression. The tenant is entitled to suppression pursuant to section 95A(1A) of the Act.

Order

Claims and awards in Tenancy Tribunal application 4542711 — net $8,311.70 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Water charges to February 2023	$572.94	Water charges to February 2023
Rubbish removal	$573.85	Rubbish removal
Lawns and Garden work	$471.50	Lawns and Garden work
Lock/key replacement	$209.30	Lock/key replacement
Replace furnishings: Carpet	$1,650.00	Replace furnishings: Carpet
Repairs to walls and shelves	$1,200.00	Repairs to walls and shelves
Meth testing	$287.44	Meth testing
Carpet Cleaning	$914.25	Carpet Cleaning
Cleaning	$1,500.00	Cleaning
__________________________________________________________________________________ 45427112 Exemplary damages – use for	$600.00	__________________________________________________________________________________ 45427112 Exemplary damages – use for
Exemplary damages – smoke alarms	$500.00	Exemplary damages – smoke alarms
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,311.70
Total payable by Tenant to Landlord	$8,311.70

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.

[The tenant/s] must pay Barfoot & Thompson Limited As Agent For James Chen $8,311.70 immediately, being sums in the table below for which [Tenant 2] is severally liable.

The Bond Centre is to pay the remaining bond of $188.02 ([Bond number suppressed]) to Barfoot & Thompson Limited As Agent For James Chen immediately.

Reasons

Both parties attended the hearing on 20 July 2023. Only the landlord attended the second hearing on 21 September 2023.

The landlord has applied for outgoings, compensation, refund of the bond, exemplary damages and reimbursement of the filing fee following the end of the tenancy. Background

As noted above, [Tenant 1] informed the landlord that she was leaving on 29 December 2022 and vacated the property on 5 January 2023.

The next issue is whether [Tenant 1] suffered family violence while a tenant of the premises.

The landlord provided water invoices which prove the amount owing for the period July 2022 to 20 February 2023. The claim for water totalled $572.94.

The garden was overgrown and needed tidying and mowing.

The tenant did not return the keys following the eviction. The locks had to be changed to secure the property. Damage to the premises

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or 4 weeks' rent.

There was damage to the walls, shelves, and the heated towel rail at the end of the tenancy. The carpet had to be replaced in 3 bedrooms ($2,530.00). The damage is more than fair wear and tear.

The landlord’s application has been partly successful. It is appropriate to award the filing fee. The tenants are jointly liable for the filing fee.

The landlord did not seek suppression. The tenant is entitled to suppression pursuant to section 95A(1A) of the Act.

Tenancy Tribunal case 4542711 — Cleanliness

At a glance

Tenancy Tribunal case 4542711 — Cleanliness

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions