What was Tenancy Tribunal case 4560869 about?

The tribunal order states: [The tenant/s] is to pay $419.44 of the bond to [The landlord/s] in accordance

How much money was awarded in case 4560869?

Advertising Fee: $199.00 awarded to landlord; Cleaning: $200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4560869?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4560869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9359060-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4560869 about?

The tribunal order states: [The tenant/s] is to pay $419.44 of the bond to [The landlord/s] in accordance

How much money was awarded in case 4560869?

Advertising Fee: $199.00 awarded to landlord; Cleaning: $200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4560869?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4560869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9359060-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4560869 — Cleanliness

Claims and awards in Tenancy Tribunal application 4560869. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Advertising fee	$199.00	Advertising fee
Cleaning	$200.00	Cleaning
Filing fee	$20.44	Filing fee

Claims and awards in Tenancy Tribunal application 4560869. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Advertising fee	$199.00	Advertising fee
Cleaning	$200.00	Cleaning
Filing fee	$20.44	Filing fee

Order

[The tenant/s] is to pay $419.44 of the bond to [The landlord/s] in accordance with the following table:
The Bond Centre is to pay the bond of $1,650.00 ([Bond number suppressed]) as follows: $1,230.56 to [The tenant/s] immediately. $419.44 to [The landlord/s] immediately.
An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord names and identifying details.
All other claims are dismissed.

Reasons

This tenancy was initially contracted to be for a fixed term of a year however it ended early after three months in May 2023. There are differing versions as to how and why the tenancy ended but unfortunately it did so with the parties having lost trust and faith in each other.
[The landlord/s] now seeks relief from the Tribunal in the form of compensation for the costs she incurred in having to end the tenancy early, having to clean the premise when it was returned to her and the deterioration that has occurred in her bathroom floor boards. I discuss each claim separately below.

Should the tenants be liable for the end of tenancy costs?

[The landlord/s] claims the following costs related to the ending of the tenancy before its contracted term on the basis that she should have been entitled to rely on the 12-month fixed term contract and so should not be out of pocket for [The tenant/s]’s breach of that contract: a. Advertising costs. [The tenant/s] agrees to pay the $199 advertising fee [The landlord/s] incurred in obtaining replacement tenants, therefore that order is made by consent. b. Loss of rental for the one week between tenancies. c. Loss of earnings due to the time it took her to find replacement tenants and attend to the end of tenancy issues.
[The tenant/s] says he raised the issue of potentially having to end the tenancy at least twice prior to signing the tenancy agreement and [The landlord/s] said they would discuss that when and if the issue arose. He says that when they started looking elsewhere for alternative accommodation, they had no intention of moving out until replacement tenants could be found. He says they offered to undertake this process themselves however [The landlord/s] wished to do so herself. He also says that when the process begun to get too difficult, they advised [The landlord/s] they would stay on and fulfil the contract, but she refused.
Therefore, [The landlord/s] feels that [The tenant/s] breached his fixed term contract by ending it early and [The tenant/s] feels that [The landlord/s] did so. Where facts are in dispute such as here, I assess the evidence I am presented with against the civil standard of proof, that is the balance of probabilities, or in other words “what is more likely than not”.
The documentary evidence establishes the following timeline: a. The tenancy commenced in February but on 28 March [The landlord/s] surprisingly started receiving calls from property managers for references for [The tenant/s] as he made applications for other properties. b. On 3 April [The tenant/s] asked if they could come to an agreement to end the tenancy if they found replacement tenants. A subsequent discussion was had on 7 April. c. As a result of that discussion, on 9 April [The landlord/s] advised that she had advertised the property with a suggested availability date of 1 May but said they needed to come to an agreement about the date. d. A viewing was held on 15 April but was not successful. e. On 19 April [The landlord/s] said that she was considering releasing them from the tenancy and asked to discuss the situation, which they did. f. On 22 April [The tenant/s] said they had decided to continue with the lease but would pay the lost advertisement costs. [The landlord/s] said in response that she would take advice and come back to them. g. On 23 April [The landlord/s] delivered a letter which said the tenancy would end on 30 April on the basis the bond was paid to her to compensate her for the damaged floor, rental advertising, loss of rental and inconvenience. She also said she would be willing to extend the vacate date to 7 May if they wished. h. On 24 April [The tenant/s] accepted the ending of the tenancy by text and asked to vacate in a further week. His text only indicates acceptance of the ending, rather than the other terms nominated. [The landlord/s] subsequently sent another document which said the tenancy would end on 3 May and the bond would be forfeited. This was not signed by [The tenant/s]. i. On 28 April [The tenant/s] said they wanted to stay until the following weekend. [The landlord/s] responded saying she did not accept the changes and uncertainty and would draft a final termination document stating that termination date would be 2pm 7 May, which is what occurred although the document was not signed.
These correspondences indicate an agreement to end the tenancy but not agreement on the terms of doing so. Having reviewed the correspondences and the oral evidence presented I find it more likely than not that the parties initially entered into an agreement to end the tenancy when replacement tenants were found. The first round of advertising was unsuccessful at which point [The tenant/s] indicated that they would fulfil the contract; essentially rescinding his offer to end the tenancy early. [The landlord/s] did not accept this and wished to end the tenancy herself by this stage, which [The tenant/s] eventually agreed with.
By this point the relationship was strained and the communications not direct or clear and the issue took on a life of its own. Both parties say they felt pushed into the termination. The law
Fixed term tenancies are legal contracts parties enter into to provide surety for them both. Both parties rely, and are entitled to rely, on the terms as contracted for. Therefore, there are only two ways in which such a contract can be amended; either by agreement, or Tribunal order.
As stated above I find that the parties did come to agreement to end the tenancy despite both parties having misgivings about how they reached that agreement; certainly the relationship was strained by that point.
I do not accept that there was agreement the tenants would forfeit the bond or that they would pay rent past their vacate date. These were things [The landlord/s] raised but were not agreed to by [The tenant/s]. Accordingly, there was agreement to end the tenancy but no agreement on the particulars other than the end date. Therefore, I must look at the claims [The landlord/s] has made in that respect separately.
The requirements around recovery of expenses incurred by a landlord when agreeing to end a fixed term tenancy early are set out in section 44A of the Residential Tenancies Act 1986 (RTA). S44A states that a landlord is entitled to recover from an outgoing tenant any expenses reasonably incurred by the landlord in respect of the agreement. However, they must provide an itemised account to the tenant of those expenses incurred before they seek recovery of same. This section was designed to end the practice of landlords charging tenants set break lease fees and rather be reimbursed for the actual costs incurred.
[The landlord/s] has not provided an itemised account of the time it took her administratively in ending the tenancy to the tenants although she did so, to an extent, at the hearing. She is claiming the equivalent of her income for two weeks being the time it took her to deal with these matters.
I do not accept that this claim was reasonable for the following reasons: i. [The tenant/s] was not told that he would be charged for [The landlord/s]’s time or how much that would be in the discussions the parties had regarding the ending of the tenancy. ii. The timing is excessive. Two showings were held, and the actual time period involved was limited. Costs are to be reasonable; $6,698 is not reasonable. iii. [The tenant/s] did not wish to end the tenancy after 22 April, [The landlord/s] did. Therefore, she cannot claim compensation for effecting an event she wished to occur. iv. The account is not specifically itemised and as such it is unclear where and how exactly the costs were accrued.
[The landlord/s] is right that she was entitled to rely on the fixed term tenancy, and to that end she did not have to agree to end the tenancy, that was entirely her choice at that stage. She chose to and even nominated the end date. The usual process is that the terms of a contract ending are agreed to fully by both parties before the contract can be deemed to have been ended by consent. That is not what happened here as [The landlord/s] took over the process and nominated the end date. Therefore, I do not consider [The landlord/s] is entitled to compensation for the time it took her to end the tenancy.
In terms of [The landlord/s]’s claim for compensation for the lost week’s rent between tenancies, I also decline this. [The landlord/s] set the vacate date, not [The tenant/s]. Accordingly, it is not reasonable that he be liable for her choice. This claim is dismissed.

Did the tenant comply with their obligations at the end of the tenancy?

[The landlord/s] claims $550 for cleaning the premise after the tenants vacated. She says it took her three full days which equated to $2,500 in lost wages and she had been quoted $550 to have it done by professionals. She says the entire unit needed to be fully cleaned.
[The tenant/s] says they left the premise reasonably clean and tidy and disputes the need for any further cleaning after they had left. He provided a video of the property when they vacated supporting his submission.
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; section 40(1)(e)(ii)-(v) RTA. The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also a tenant, generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
[The landlord/s] provided the following photos of the property after the tenancy had ended to support her claim for cleaning costs: i. Photos of a dust filed extractor vent in the drier. I consider it over and above a tenant obligation to clean such an extractor vent. Tenants are expected to remove the lint from the lint filter but the cleaning out of such a vent is a landlord maintenance obligation given the risk of damage to the machine in doing so. ii. Photos of dirt and dust around the silicone lip of the drier. Again, this is not an easy to reach area and as such falls within a landlord’s obligations rather than a tenant’s. iii. Photos of dirty windows. Tenants are not statutorily responsible to clean the outside of their home. This is a landlord maintenance obligation, as is the cleaning of heat pump filters which was discussed at the hearing. iv. Photos of miscellaneous hairs potentially in the bathroom. v. Pictures of dirt on floors, in the toilet, on the kitchen extractor fan, the oven, window sills, a door and shower door. vi. Photos of a dirty spoon, plate and sheet. vii. Photos leaves outside the entrance way to the property which were put in the compost bin.
[The tenant/s] has provided a video as to how they left the property supporting his submission that they left it reasonably clean and tidy. He says they did not use [The landlord/s]’s linen so say the dirty sheet was not attributable to them.
Having assessed all the evidence the parties have provided against the statutory requirement, I find that the tenants did not leave the property reasonably clean and tidy, however it was close. Any amount ordered in compensation must be reasonable and reflect the work required as established on the evidence. In assessing that, I find that an award of $200 compensation is reasonable in the circumstances.

Is the tenant responsible for the damage to the premises?

[The landlord/s] says that there is irreparable damage to the wooden floors around the shower which occurred during the tenancy, presumably as a result of the way the tenants used the shower. The flooring is the original matai wood so cannot be replaced however she has obtained an estimate of what it would cost to replace the floor with tiles which is approximately $4,800. She has not yet suffered this cost as a replacement tenant has moved in and she considers the disruption to her tenancy would be disproportionate to the need.
[The tenant/s] says the flooring in the bathroom was left as it was found. He says the damage was already there when they moved in and cannot have occurred over their short tenure. He is clear that they always wiped up water after a shower use and the flooring is old and used.
[The landlord/s] is adamant that there was no damage at the commencement of the tenancy which she says she knows as she did the clean prior to this tenancy. She says the floors were previously varnished in 2017 and were in excellent condition. The law
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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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 four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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. See section 49B(1) RTA.
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. See Guo v Korck [2019] NZHC 1541.
At this point it is important to reiterate that the onus of proof lies with the person or persons bringing the claim, that is [The landlord/s] here. I do not find it established in evidence that this damage occurred during this tenancy or that if it did, it was as a result of the tenants’ careless actions. The tenancy lasted less than three months and I find it more likely than not that this level of rotting would have taken much longer to occur. There were no photos of the flooring prior to the tenancy and much of the rotting was behind the skirting.
Further, wooden floor varnishing is estimated to last approximately 7 years. The varnish on these floors was approximately 6 years old, therefore nearing the end of its expected lifespan which I expect would have been less given it is flooring in a bathroom and therefore more subject to damp conditions.
I find that this damage is fair wear and tear which has occurred gradually over the years. Accordingly, I do not find the tenants liable for this damage and dismiss the claim. Tenant’s position
I note that [The tenant/s] referred to various grievances they had with the tenancy in his written and oral submissions. However, as he has not filed a cross application for resolution of them, I make no findings on those. Filing fee
Because [The landlord/s] has substantially succeeded with the claim, I must reimburse the filing fee. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion if in the public interest. Both parties have applied for suppression and as both were successful to an extent in their positions, I approve them both.

Tenancy Tribunal case 4560869 — Cleanliness

At a glance

Tenancy Tribunal case 4560869 — Cleanliness

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenants be liable for the end of tenancy costs?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Should the tenants be liable for the end of tenancy costs?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions