Published tribunal order
Tenancy Tribunal case 4590932 — Cleanliness
Decided 27 Feb 2024 · Published 27 Feb 2024 · Application 4590932
- Cleanliness
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
- The provisions of the Residential Tenancies Act 1986 apply to this tenancy.
- [The landlord/s] must pay [The tenant/s] $120.44 immediately, calculated as shown in table below: DescriptionTenant Compensation for failure to provide the premises in a reasonable state of cleanliness and repair Filing fee $100.00 $20.44 Total award $120.44 Total payable by Landlord to Tenant $120.44
Reasons
- Both parties attended the hearing today. [The landlord’s representative] represented the landlord and stated that he is the manager at [The premises]. [The tenant/s] attended.
- On 12 July 2023 the Tribunal made a decision that there was jurisdiction to hear this matter and adjourned it for the tenant’s claims to be heard.
- On 16 October 2023 the application was dismissed for non appearance of the tenant. The tenant arrived shortly after the matter had been dismissed and applied for a rehearing which was granted.
- The matter was reheard before me on 21 February 2024. Background
- The tenant and her partner were referred to MSD to rent a self contained unit at [The premises] on 22 September 2022. [The tenant/s] stated that when they were taken to their unit there was a party happening next door and rubbish piled at the entrance to their unit. The manager then took them to another unit which had not been cleaned and had a broken fridge and insufficient provision for cooking. They stayed the night but returned the keys and moved out the following day.
- The tenant has applied for refund of bond and one week’s rent paid in advance, compensation for failure to comply with Healthy Homes Standards, failure to lodge bond, failure to provide the premises reasonably clean and tidy.
- The landlord claimed that the Tribunal has no jurisdiction to determine these claims as the premises are a motel.
- The Tribunal must firstly determine whether there is jurisdiction to hear the tenant’s claims.
- Section 10 of the Residential Tenancies Act 1986 (“RTA”) requires where, in any “proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.” The onus is therefore on the landlord to prove on the balance of probabilities that the Act does not apply in this case. Jurisdiction
Does the Act apply in this case?
- The Tenancy Tribunal has jurisdiction to consider disputes between landlords and tenants in residential tenancies. See section 77(1) of the RTA. However, there are some kinds of tenancies that are excluded from the jurisdiction of the Residential Tenancies Act 1986. The excluded tenancies are set out in section 5 of the Act.
- [The landlord’s representative] claimed that the RTA does not apply because the premises are commercial premises, the premises are a motel and provide temporary accommodation and the premises are used to provide emergency or transitional accommodation. These exceptions claimed are contained in sections 5(1)(a), 5(1)(k) and 5(1)(y) of the Residential Tenancies Act 1986.
- I will consider each exception claimed in turn. Does the exception in section 5(1)(a) apply?
- The Act does not apply if the premises are commercial premises. [The landlord’s representative] claimed that as the motel is a business enterprise it is excluded from the RTA. [The landlord’s representative] advised that the motel premises are leased from the landowner.
- The definition of commercial premises in section 2 of the Act is “premises that are not residential premises”. Residential premises are defined as “any premises used or intended for occupation by any person as a place of residence”.
- In this case it is clear that the unit was intended for residential occupation, the agreement entered into between [The landlord/s] and [The tenant/s] was for the purpose of a residence for her and her partner, therefore, this exclusion does not apply. Does the exception in section 5(1)(k) apply?
- Section 5 (1) (k) provides an exclusion. where the premises— (i) are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii) are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement.
- It is agreed that these premises are a motel complex that ordinarily provide for accommodation for periods of less than 28 days at a time, however, the exclusion also requires that an agreement has been entered into for the purpose of providing temporary or transient accommodation.
- [The landlord’s representative] has not provided a copy of the agreement entered into between the parties. He stated that the computer crashed and this is not available. The tenant stated that she signed a printed copy of an agreement but was not given a copy.
- Both parties gave evidence that a tenancy agreement form was signed. [The landlord’s representative] stated that it is a standard form agreement that was available on the Tenancy Services website. He stated he was told he could use this.
- [The landlord’s representative] has provided a copy of an agreement signed by a later occupant of the unit and states that it is the same type of form that was used for the agreement with [The tenant/s].
- The form is headed Tenancy Services. The landlord details state “[The premises]”. The tenant details are recorded. There is a heading Tenancy Details with the address of the tenancy, rent per week, bond amount. The commencement date is recorded and clause 2 records that this is a periodic tenancy. There is reference to the Residential Tenancies Act 1986 on the form and under the heading Signatures is recorded “The landlord and tenant sign here to show that they agree to all the terms and conditions in the tenancy agreement ...”
- [The tenant/s] looked at the agreement provided by [The landlord’s representative] and stated that although the tenant details, the dates and amounts differed the form of the agreement looked the same as what she signed.
- This agreement does not record that it is for the purpose of providing temporary or transient accommodation.
- The tenant provided a copy of a letter from MSD addressed to her dated 24 May 2023 which stated that Rent in advance and Tenancy Bond was paid to [The premises] on 22/09/2022 as follows:
- [The landlord’s representative] claimed that most residents at the premises stayed for a few days and others stayed longer, he was not specific about how long. The tenant disputed this and stated that some residents stayed long term. The only written evidence was the letter from MSD and the tenancy agreement provided by [The landlord’s representative] for a periodic tenancy commencing in December 2022.
- The tenant stated that there was no stipulation of how long she could stay.
- Both short and long-term accommodation may be offered at a motel. In this case I find that there is no evidence that this agreement was intended to provide temporary or transient accommodation ordinarily, or that there was agreement that that would be the case with this tenant. The taking of a week of rent in advance as well as three weeks bond is consistent with a tenancy commencing. I find that the exclusion does not apply in this particular case as it is clear from the evidence of both parties that a periodic tenancy agreement was entered into.
- For the above reasons I find that the landlord has not proved that the exception in section 5(1)(k) applies in this case. Does the exception in section 5(1)(y) apply?
- Section 5(1)(y) provides an exception if the premises are used to provide emergency or transitional accommodation and— (i)the provision of the accommodation is funded wholly or partly by— (A) emergency housing assistance paid to or for the credit of a person under the Special Needs Grants Programme; or (B) any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing;
- The landlord claims that the accommodation was emergency or transitional accommodation and that this was funded by MSD.
- The landlord did not provide any evidence in support of the claim that this was emergency or transitional accommodation, other than stating that this is a motel.
- The tenant stated that she had been unable to find rental accommodation after being given notice to vacate the house she had lived in for three years as the owner’s son was moving in. Her MSD case worker arranged for her to go to [The premises] and paid the three weeks bond and one week rent in advance. She signed an agreement for a self-contained unit. She stated that there was no stipulation of how long she could stay there. She understood she could stay as long as she wanted but stated that she intended to look for other rentals in due course.
- She arrived at 7.30pm and after signing the rental agreement for a self- contained unit [The landlord’s representative] took her to the unit agreed upon. When they arrived at the unit there was a party happening next door, the smell of cannabis and bags of rubbish piled outside her unit. They did not enter the unit and [The landlord’s representative] took her downstairs to another unit. This unit was dirty and had not been cleaned, the fridge leaked and the unit did not have adequate cooking facilities, only a jug and toaster in a cupboard.
- [The tenant/s] stated that she and her partner stayed one night and then went to reception the next morning and handed the keys back stating that they could not continue to live there due to the condition of the premises.
- [The tenant/s] stated that she has continued to repay to MSD the amount advanced for the bond and first week’s rent and as a result she has had difficulty obtaining a further bond.
- The letter provided by MSD only refers to rent and bond and includes the rate at which these will be repaid by the tenant. There is no reference to this being for the provision of emergency or transitional accommodation.
- It is not unusual for MSD to assist tenants with start up costs at the commencement of a tenancy if the tenant is a beneficiary. The question is what was funded.
- [The landlord’s representative] has not produced any evidence that this was an agreement for emergency or transitional accommodation and on the face of it the use of the standard form Tenancy Services tenancy agreement indicates that a tenancy was intended to be entered into.
- The Tribunal finds that the landlord has not proved to the required standard that the exclusion in section 5(1)(y) applies in this case. Therefore the Tribunal has jurisdiction in this matter.
- For the reasons I have set out above, I find that this is not an excluded tenancy. However, even if I were wrong in that assessment, I would have nevertheless found that the Tribunal has jurisdiction to consider this claim, because I would have found that the parties contracted back into the RTA.
- Section 8 of the RTA is relevant, and confirms that parties to an excluded tenancy can contract back into the RTA where it confirms: (1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree.
- In this case the parties have used the standard form Tenancy Services tenancy agreement. In doing so, it is plain that they have agreed to be bound by the terms of the RTA.
- I note the District Court decision of Fetherston v Barfoot and Thompson Ltd [2015] NZDC 12810. In that case the tenant was a purchaser under an agreement for sale and purchase of the property. The tenancy was therefore an excluded tenancy under s5(1)(o). However, the parties had signed a standard form tenancy agreement which included the statement under the heading General Conditions “The provisions of the Residential Tenancies Act 1986 shall apply to this tenancy”. Judge Harrison considered that it was clear that the written tenancy agreement signed by the parties imported all of the provisions of the Act into the tenancy, meaning that they contracted back into the RTA.
- I have no reason to take a different approach in the case before me. Bond and Rent Refund
- The tenant paid a bond of $1800.00, and one week’s rent of $600.00 and seeks that this be refunded to her.
- As the Tribunal has found that the Residential Tenancies Act provisions apply, they must be applied to both parties. The tenant is required to give 28 days’ notice to terminate the tenancy pursuant to section 51(2B) of the Act. The landlord claims that the amount of $2400.00 is owed in lieu of notice. This amount cancels out the bond and first week’s rent therefore no refund will be paid to the tenant.
- The tenant claimed that the landlord failed to lodge the bond. The landlord failed to lodge the bond within 23 days as required by section 19 of the RTA. The Tribunal may award exemplary damages if it is satisfied that the landlord committed the unlawful act intentionally. See section 109 RTA. In this case the Tribunal finds that the failure to lodge was not intentional as there was uncertainty regarding jurisdiction and the tenancy ended before the expiry of the 23 working days. Healthy Homes Standards
- The tenant claimed that the landlord failed to comply with Healthy Homes Standards. The landlord has 120 days to comply with Healthy Homes Standards from the start of a tenancy. As the tenancy ended before the expiry of the 120 days the Tribunal finds that the landlord did not have the opportunity to comply. Therefore, no compensation will be ordered. Failure to provide the premises in a reasonable state of cleanliness and repair
- The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
- The tenant gave evidence that the first unit she was offered had bags of rubbish piled in front of it and then the second unit (unit 5) was provided in an unclean state with inadequate cooking facilities and a leaking fridge. The landlord agreed with the tenant’s evidence.
- Having considered the evidence I find that the landlord breached the obligation to provide the premises in a reasonable state of cleanliness and repair as required by section 45(1)(a) and (b) of the RTA. I have taken into account that the tenant has not provided photographs, only stayed in the premises for one night and did not give the landlord the opportunity to remedy the breach. I order the landlord to pay the amount of $100.00 in compensation for the breach. Filing fee/Suppression
- Because the tenant has substantially succeeded with the claim I have ordered reimbursement of the filing fee as applied for. See sections 102(4) Residential Tenancies Act 1986.
- The Tribunal may on the application of any party or on its own initiative make a suppression order, having regard to the interests of the parties and to the public interest. Section 95A (4) Residential Tenancies Act 1986. The tenant has applied for suppression and has had success with her claim. Having considered the particular factors of this case the Tribunal grants suppression of all party details in any publication of this order.