What was Tenancy Tribunal case 4585171 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $90.75 immediately in accordance with

How much money was awarded in case 4585171?

Cleaning: $200.00 awarded to tenant

What type of tenancy dispute was case 4585171?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4585171?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9356541-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4585171 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $90.75 immediately in accordance with

How much money was awarded in case 4585171?

Cleaning: $200.00 awarded to tenant

What type of tenancy dispute was case 4585171?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4585171?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9356541-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4585171 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4585171 — net $90.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Cleaning Heat pump call out fee Exemplary damages: breach s45	$200.00	Cleaning Heat pump call out fee Exemplary damages: breach s45
Net award	$90.75
Total payable by Landlord to Tenant	$90.75

Claims and awards in Tenancy Tribunal application 4585171 — net $90.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Cleaning Heat pump call out fee Exemplary damages: breach s45	$200.00	Cleaning Heat pump call out fee Exemplary damages: breach s45
Net award	$90.75
Total payable by Landlord to Tenant	$90.75

Order

[The landlord/s] must pay [The tenant/s] $90.75 immediately in accordance with the following table:
The Bond Centre is to pay the bond of $3,200.00 ([Bond number suppressed]) immediately to [The tenant/s].
All other claims are dismissed.
An application for suppression has been made in this case, and the Tribunal orders suppression of both parties names and identifying details.

Reasons

The parties had a fixed term tenancy of a year’s duration that has ended with both parties filing claims against the other.
I discuss each claim separately below but note the evidential standard is the civil standard of the balance of probabilities, or “what is more likely than not”. The burden of proof generally lies with the claimant. The parties should also be aware that whilst I may not have referred in this decision to all the evidence filed, it has been taken into consideration. Landlord’s claims

Was the premise returned in a reasonably clean and tidy state?

[The landlord’s representative] for [The landlord/s] seeks compensation in the form of reimbursement of the $632.50 invoice they received for cleaning the property after the tenants had vacated. She says the property was not reasonably clean and tidy and a considerable amount of cleaning had to be done. She says the owner paid for and undertook other cleaning than that claimed for, but she is of the view that the invoice submitted is attributable to the tenants. The invoice relates to cleaning the lounge suite and depiling the cushions, sweeping the pathway, removing 2-3 stickers, cleaning switches, taps, windows, the kitchen, laundry, bathroom and incinerator. [The landlord’s representative] submits that they are being more than fair as there were many other costs they could have attributed to the tenants but did not.
[Tenant 1] disputes the invoice as he says they did leave the premise reasonably clean and tidy, and he has submitted a video of the property they took when they left. He says it was not provided to them particularly clean as in particular they had to do a thorough vacuum which he has provided photographic evidence of. He says it was certainly no dirtier when they left than they found it. He says the couches are old and piling and they had vacuumed them as much as possible. They had wanted to do the inspection with [The landlord’s representative] to avoid any misunderstanding in this respect, but she refused. He says he was not told cleaners would be coming at his cost and disputes his liability.
A tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy 1 . 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. 1 See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986
Applying the statutory standard, I note that these tenants are not responsible for the piling of the couches which is a function of their age and material. They are also not responsible for cleaning the outside of the windows or the inside of the washing machine.
Having assessed the photos both parties have submitted objectively, I find that the premise was not left reasonably clean and tidy however, very close. The photos do establish some minor matters such as some cellotape underneath the cushions on the couch and some minor marks, however the majority of the matters the cleaners attended to were over and above the standard required of the tenants. In making this finding I have also assessed the photos the tenants provided of the premise when they moved in which included some mould on a high up window, unvacuumed floors and a doghouse with dirty linen left in the gardens.
Accordingly, I consider an award of $200 sufficient to compensate the landlord for this minor breach.

Should the tenants be liable for the heat pump call out fee?

Towards the end of the tenancy, [Tenant 1] advised [The landlord’s representative] that the heat pump did not appear to be working again. He says he did this by email and [The landlord’s representative] says it was a phone call. [Tenant 1] says he was just advising her as the tenancy was ending shortly thereafter and he wanted her to be aware, but he did not expect any action to be taken. [The landlord’s representative] says she took it as a request for maintenance.
[The landlord’s representative] immediately sent a work order to the heat pump supplier who investigated. He found the remote was out of batteries. Because this was an unnecessary callout, [The landlord’s representative] seeks reimbursement of the $109.25 fee.
[The landlord’s representative] says she told [Tenant 1] to check the batteries and try a hard reset and he said he had done those things; this is why she sent the trade rather than checking it herself. [Tenant 1] denies she said this to him but nonetheless says there were numbers on the screen of the remote, so he considered it a reasonable assumption that the batteries were sufficient. He says he did not agree to the maintenance call out and does not know what happened to the batteries.
[Tenant 1] was provided with time post hearing to file the email he says he sent [The landlord’s representative] which allegedly established he was just advising her of the issue and not seeking a response. This email has not been filed; accordingly I give more weight to [The landlord’s representative]’s account which was that they had a phone conversation about the matter. She says he told her he had checked the batteries and done a hard restart therefore she considered it prudent to call the maintenance person, especially given the previous issues with the heat pump which are discussed below.
Having assessed the evidence I prefer [The landlord’s representative]’s recollection of events that [Tenant 1] said he had checked the batteries. Accordingly, the call-out could have been avoided had he actually done that, or even rather that they had not removed the batteries in the first place. Therefore, I find the tenants liable for the call-out fee.

Should the tenants be liable for the tv installation price?

During the tenancy the tenants accidentally broke the television. They therefore ordered a replacement which arrived just after they had vacated. [The landlord’s representative] found it at the door and has paid a technician to install it. His invoice states: ‘unbox tv, setup on stand, setup existing freeview decoder on to new tv. $92.’ [The landlord’s representative] seeks reimbursement of this cost from the tenants saying it was their responsibility to make good their damage.
The tenants have accepted liability for this damage and replaced the tv with a newer model. They dispute liability for the installation costs as they say they are unreasonable, especially given the landlord is benefiting from a new tv to replace their old one. [Tenant 1] says that when they moved in the tv was not plugged into the freeview unit anyway so he ‘installed’ it himself which he says was a very basic process.
When assessing compensation for damage, betterment and depreciation should be taken into account. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. The landlord here has a new tv which is clearly better than the previous one, accordingly taking into account the principle of betterment, I decline to award the further costs.
I also note that the cost was essentially to place the tv on its stand and undertake a task that had not been done when this tenancy started. I therefore find the claim unreasonable and dismiss it. Tenants’ claims

Has the landlord breached their obligation of maintenance?

[Tenant 2] and [Tenant 1] claim exemplary damages for a breach of the landlord’s obligations to provide and maintain the premises in a reasonable state of repair pursuant to s45 of the RTA. They say the heat pump was not functional for approximately four months which was essentially all of winter. As a family with three very young children in a property right next to the sea which gets very cold, this was very hard for them. [Tenant 1] says the heat pump should have been checked properly before they moved in and if it had been they would not have had to suffer a freezing winter. He provided photos showing the temperature inside the house between 10 and 13 degrees. He says the heater they were provided with was insufficient.
[The landlord’s representative] submits that they did all they could. She attended the property the day she was notified to check it, and immediately submitted a work order. The delays arose because there was only one company they could deal with as it was under warranty, and they suffered delays related to illness. Further, parts had to be ordered from overseas and the first ones sent were not correct.
She says they understood the inconvenience for the tenants and because of that she provided them with her own heater, (in addition to the one already at the property), gave them a $50 rent decrease for the majority of the period, offered to end the tenancy early, attempted to hire a portable heat pump and rigorously followed up the matter with the trade. She also says she offered to buy them a better heater and open back up the closed off fireplace; both offers were refused. She says they were in constant communication and did have a lengthy meeting about it after they complained to her manager. She had thought the matter was resolved until they made their cross application mentioning the issue.
[The landlord’s representative] says they had no indication the heat pump was not working prior to the tenancy as the previous tenant had not reported any issues and on her cursory inspection prior to the tenancy it appeared to be functional.
Section 45 of the RTA requires a landlord to provide a reasonably maintained property and keep it that way throughout the tenancy. It is well settled that, the landlord’s obligation under section 45 with maintenance issues that arise is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. What that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Therefore, a landlord has a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Given the fault was noticed days into the tenancy, I am satisfied that it is proven that the heat pump was broken at the outset. A landlord cannot rely on previous tenants to raise functionality issues with them and must check all appliances provided prior to a tenancy to ensure they are all in good working order. I find it established that it is more likely than not that [The landlord’s representative] did not adequately check the heat pump was functioning effectively prior to the commencement of the tenancy. Accordingly, I find a breach of s45 in the failure to provide the property in reasonable condition.
I do however accept [The landlord’s representative]’s submissions that they did all they could in the circumstances to rectify the issue. She was clearly actively chasing up the repair and mitigated the situation in the meantime by providing a rent reduction and heater. I also accept her evidence that she offered another heater which was declined. It is disingenuous for a tenant to complain after declining offers to assist them.
This was an unreasonable delay; however I do not find that it was of the landlord’s making and I consider the efforts made to address the issue sufficient in the circumstances.
Despite this, as the landlord has breached s45, they have committed an unlawful act, and as such exemplary damages may be awarded up to a maximum of $7,200.00; see section 45(1A) if it is found that they have committed the unlawful act intentionally. I find that the intentional element of s109 has been met as [The landlord/s] are a well-established property management company and as such, well aware of their obligations.
In an assessment as to whether exemplary damages are justified, the Tribunal must be satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
In such a consideration, I note as follows: a. [The landlord’s representative] did not intend to rent the house out with a deficient heat pump, and she did take some steps to check it was working, although not all those available to her. b. The impact of the breach has however impacted the tenants greatly as they have had to suffer an extremely cold winter. c. As I have found above, [The landlord’s representative] did take all reasonable steps to rectify the issue when raised, including providing a rent reduction. d. It is in the public interest for landlords to be held to account for failures to provide functioning heating, especially in properties tenanted during winter months.
Having assessed all of the above factors, I find that an award at the lowest end of the spectrum at $400 justified. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. 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. Both parties seek suppression and as both were successful to an extent in their positions, I allow those.

Tenancy Tribunal case 4585171 — Exemplary damages

At a glance

Tenancy Tribunal case 4585171 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the premise returned in a reasonably clean and tidy state?

Should the tenants be liable for the heat pump call out fee?

Should the tenants be liable for the tv installation price?

Has the landlord breached their obligation of maintenance?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the premise returned in a reasonably clean and tidy state?

Should the tenants be liable for the heat pump call out fee?

Should the tenants be liable for the tv installation price?

Has the landlord breached their obligation of maintenance?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions