Published tribunal order
Tenancy Tribunal case 4635791 — Cleanliness
Decided 30 Oct 2023 · Published 30 Oct 2023 · Application 4635791
- Cleanliness
Party names are redacted in the official published order.
Order
- The landlord must carry out the following work to the premises, which must be completed by 10 December 2023; a. Repair ranchslider; b. Repair bathroom fan; c. Repair missing windows in the back entrance door; d. Repair window in back porch to ensure it opens; e. Replace stained carpet in lounge; f. Remove the items that do not belong to the Tenant; g. Repair hole in curtain in the lounge; h. Repair bathroom wash basin; i. Repair damaged powerpoints in the property; j. Repair all windows in the property that do not open or close; k. Repair broken blinds
- As an alternative to compliance with Order 2, the landlord must pay the tenant $16,800.00 immediately.
- If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $16,800.00. These costs may be set off against rent payable.
- The Landlord shall pay the Tenant $2,330.44 immediately.
Reasons
- Both parties attended the hearing.
- The Tenant applied for work Orders, breach of Healthy Home Standards, compensation.
- The Landlord applied for termination, refund of the bond, compensation and reimbursement of the filing fee.
LANDLORDS CLAIMS
Termination
- The Landlord sought to end the tenancy based on section 78(g) of the Residential Tenancies Act 1986 (‘RTA’) which states the following: “Where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part)” The Landlord also sought to end the Tenancy based on contract law whereby the parties entered into the Tenancy Agreement induced by the Tenant’s misrepresentation of her marital status. When the Tenant applied for the tenancy, she applied as a couple and stated she would be using her husband’s income to pay the rent. The Landlord reported this to Work and Income NZ who he alleges was investigating the Tenant for benefit fraud. He did not want to be an ‘accomplice’ to the Tenant’s illegal activity so sought to end the tenancy.
- The Tenant submitted that when she viewed the house, she brought her flatmate with her who was her acquaintance. He was looking for somewhere to live in [City] and they have never been married. The Landlord then emailed the Tenant stating he had seen his lawyer and threatened that if she did not request to terminate her tenancy by 2 July 2023, he would report her for benefit fraud.
- In considering the evidence, the Landlord did not produce any evidence of the Tenant attempting to misrepresent herself. On perusal of the Tenancy Agreement, she applied as a single Applicant. There was no evidence from Work and Income NZ confirming that the Tenant misrepresented herself either.
- For these reasons, the Landlord’s claim for termination is dismissed. Compensation - Time dealing with Tenant
- The Landlord claimed $1500.00 for having to deal with the Tenant’s ‘malicious’ behaviour, taking time off from his full-time job and preparing evidence for the hearing which involved taking photographs. He had to use his annual leave and it cost him his salary of $700.00 per day. The Landlord did not provide evidence of any pay slips or proof of annual leave taken.
- The Tenant claimed that this was unreasonable because it was the Landlords responsibility to keep the house in a reasonably clean standard. The Tenant should not be liable for his obligations.
- In considering the evidence, the Landlords claim dealing with the Tenant was as a result of the Tenant attempting to assert their rights. These were all matters which the Landlords can expect as part of their ordinary course of business. The Tenant was merely wanting the Landlord to fulfil their obligations by ensuring the property was in a reasonable state of repair. I do not find her actions malicious and do not find the Landlord should be compensated for this.
- For this reason, the claim is dismissed.
TENANTS CLAIMS
Work Orders
- The Tenant claims that the landlord did not repair the following: a. Repair the ranch slider - The Tenant claimed that the ranch slider was in a poor condition which made the property unsecure. The frame was held together by selotape, it did not shut completely, the lock was removed, there were no rubbers and it had fallen out of the railing. The Tenant notified the Landlord immediately of the issue and on 28 May 2023 a Tradesperson was sent to the property. The Tenant noticed after the Tradesperson repaired it that it still needed rubber, the glass still wobbled, the door was not on the rails, the mid-section lock was removed and the door was still unsecure. A Tradesperson was sent to repair it three times however the same door remains in its faulty condition. The Tenant provided photographs of the door. The Landlord submitted that the Builder who attended to the repairs was satisfied that it was fixed. In considering the evidence, I find from the Tenants photographs that the ranch-slider still remains in a poor condition and requires immediate repair. b. Repair the bathroom fan - The Tenant claimed the bathroom fan was not working and this was evident through the mould and mildew growing on top of the shower head. A Builder that attended the property in July 2023, confirmed that this was working however when the Tenant placed her hand in front of it, she could not feel any wind or hear it. For this reason, there was a build-up of moisture on the shower walls after she finished her shower despite leaving the window wide open. The Tenant pointed out this issue to the Landlord several times when he would come over. The Builder advised the Landlord that an electrician was required or a replacement fan. This is when the Landlord told the Tenant it was fixed. Photographs of a rusted shower caddy and lopsided bathroom sink was provided. The Landlord submitted that he brought a new fan when he was notified of the issue but when he went up into the ceiling to replace it, the fan was working fine. The Landlord asked the Builder to check it and he confirmed as well that the fan was working. The Landlords Healthy Home Inspection report dated 11 May 2023 however confirmed it was broken. In considering the evidence, I find it more likely than not from the HH inspection report, that the bathroom fan was not working and required repairs. c. Repair Broken/missing windows in the back entrance door - The Tenant claimed for the repair of missing window panels in the back entrance door. Photographs were provided of these. The Tenant submitted when she notified the Landlord, he refused to repair it. The Landlord submitted that he had a Healthy Home Standards report which did not report any security concern with the windows being missing. In considering the evidence, the Tenant has provided photographs of the damage to the door. The missing window frame is a safety hazard and the Healthy Home standards focuses on other standards, not security of the door. The Landlord still has an obligation to maintain the property in a reasonable state of repair. d. Repair the window in back porch that does not open- The Tenant claimed the window in the back porch was sealed shut and photographs were provided. The Landlord submitted this window was fixed in June 2023. In considering the evidence, I find it more likely than not, from the other lack of repairs in the porch and back ranch slider, that the window is sealed shut and a repair is required. e. Replace lounge carpet - The Tenant claimed the smell of animal urine on the carpet was so prominent it required replacing. Photographs were provided of the staining. The Landlord disputed this stating that he had cleaned the carpet and he waived the second weeks rent because of the stains. He also stated that there was no perfect house and the carpet was in a reasonable condition. In considering the evidence, I find it more likely than not that the carpet was stained and required replacing from the photographs provided. The stains were extensive and covered a large portion of the lounge carpet. This is a communal area where the Tenant would bring their visitors therefore it would create great discomfort if it were not replaced. f. Repair hole in lounge curtain - The Tenant claimed there was a huge hole in the lounge curtain that required mending. The Landlord told her he would fix it but ended up only fixing the curtain in her bedroom and not the lounge one A photograph was provided. The Landlord stated that he could not repair the holes in the lounge curtain because at that time of the notification, which was 16 May 2023, his lawyer had advised him to stop responding to the Tenant’s correspondence. In considering the evidence, the landlord has an obligation to provide the property in a reasonable state of repair which includes repairing ripped curtains. This could affect the security of the Tenant if passers-by could see through the holes. g. Remove the previous Tenants belongings - The Tenant claimed there was a substantial amount of belongings left behind from the previous tenancy which the Landlord had not cleared when they moved in. This included baby car seats, a medical bed, stools, outdoor lounges, pots, drawers and a bed frame. This filled the shed and she wanted it to be removed but the Landlord advised her she would have to pay for the disposal. The Landlord stated that he had told the Tenant at the start of the tenancy that she could keep whatever she wanted that was left behind and the rest he would dispose of. The Landlord stated that the remaining items were things which the Tenant confirmed to him that she wanted to keep. In considering the evidence, I find it more likely than not that the Tenant wanted all of the previous Tenants belongings removed. They appeared to be defective or rubbish from the photographs and I find it difficult to fathom why she would want to keep this. The Landlord also has an obligation to ensure the property is vacant when the Tenant moves in which means it is his responsibility to have this removed. h. Repair bathroom wash basin - The Tenant claimed the bathroom vanity was leaning, the shelves were not level and dirty. There were still tooth brushes inside it from the previous Tenants. The Landlord advised her he would repair it when she moved in. He never repaired it. The Landlord stated that he was only aware of the issue in July 2023. He referred to the inspection in July 2023 where the parties ended up fighting which may have distracted him at the time. He considered the basin did not require repair. In considering the evidence, I find it more likely than not from the photographs that the bathroom vanity requires repair if not replacement. i. Repair faulty power points - The Tenant claimed there were at least two power points that required repair. The Tenant’s flatmate had only one working power point in his room and the other one did not work. There was also no cover to the light switch in the hallway so her finger would often slip into the hole. Photographs were provided of the power points and switch. The landlord refused to repair the power points. In considering the evidence, the Landlord must repair these power points and light switches in ensuring they maintain the property in a reasonable state of repair. j. Repair windows that do not open or close - The Tenant claimed there were windows that would not shut or open which included the back porch, two windows in the lounge up top, one in the Tenants flatmates room, two in the spare room and one in the porch. Photographs were provided of the faulty windows. The Landlord submitted when the Tenant moved in, all of the windows were functional. The Tradesperson had fixed them all within three weeks of the Tenant moving in. He was not notified of the other faulty windows after that. In considering the evidence, I find it more likely than not from the photographs and age of the property, that there were windows that required repair from the photographs provided. k. Repair broken blinds - The Tenant claimed the kitchen blinds were stuck, the bathroom blinds only came down on one side and there were yellow stains on the kitchen blinds. The Tenant notified the Landlord who refused to repair them. The Landlord submitted he was never made aware of the faulty blinds. In considering the evidence, the Landlord has now been made aware of the blind issues and is ordered to repair them. Again, this is essential for the Tenants security if the blinds are not working.
- Under section 45(1)(a)-(ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986. Breach of Healthy Home Standards
- The Tenant claimed the Landlord breached the Healthy Home Standards, specifically there was moisture ingress in the bathroom because the fan failed to work. As a result there was mould accumulating on the walls of the house which she had to constantly clean.
- The Tenant also noticed there was spouting around the house that was not connected properly so she would hear water gushing down the pipes when it rained. There was also a ventilation standard breach from the draft coming through the faulty ranch slider and broken porch windows. The deck cover was unconsented and she stated at night the house was very cold.
- The Landlord disputed this stating that he had a Healthy Homes Assessment conducted and within three weeks he had the roof cleaned as per the report recommendation. He repaired the ranch slider and the extractor fan was working but just required someone to turn on the hidden switch.
- The Healthy Homes Standards assessment was conducted on 11 May 2023 and indicated there was non- compliance with the moisture ingress and drainage, draught stopping and ventilation standards. This was due to the bathroom extractor fan not being operational and gaps around the doors and windows.
- In considering the evidence, the tenancy commenced on 23 March 2023 and therefore the property must be compliant within 90 days of the start of the tenancy. The extractor fan is still not working and there is still work required on the window and door gaps.
- The Landlord is in breach of the Healthy Homes standards. Tenants claim for meth testing
- The Tenant claimed $259.15 for commissioning a meth test on 23 June 2023. They were informed by the Landlord this had never been conducted however the Tenants neighbours advised them that there may have been illicit drugs consumed on this property at some stage. The results indicated levels of methamphetamine equating to 11.9μg/100cm2 at the property. The Tenant had a receipt for the testing and sought reimbursement from the Landlord. The law
- There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm2 for high use areas where contamination has resulted from both consumption and manufacture.
- In May 2018, Professor Sir Peter Gluckman, the then Prime Minister's Chief Science Advisor, released a report "Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards”. The report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.
- The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947. 21. More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
- In this instance there have been no pre-tenancy methamphetamine test results. The District Court has concluded that the lack of pre-let testing meant the landlord did not prove contamination occurred during ‘that’ tenancy. See Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210; Brooking and Hodges v Imrie [2021] NZDC.
- In considering the evidence, the test results indicate that the methamphetamine traces in the property according to the Gluckman report were less than 15μg/100cm2. The levels are safe. Because the findings indicate there is no contamination as defined by the standards which the Tribunal tends to adopt, I find the Landlord should not pay for the testing.
- The claim is dismissed. Tenants claim - cleaning
- The Tenant claimed $280.00 for the eight hours they spent cleaning the property when they moved in. Because they were mindful of the methamphetamine use in the property, they had to disinfect the walls, clean the bathtub, clean the kitchen roof, vacuum the lounge, clean the grease and dust in the kitchen and wipe down the sink. They also cleaned the oven and the rangehood was filthy with oil and grease.
- The Tenants’ mother was a professional cleaner and her business card was provided. She described this as a vacate clean. There was also a lot of the previous Tenants belongings that required removing.
- The Landlord claimed the house was cleaned the day before he conducted the viewing. He did 80% of the cleaning back then and then told the Tenant he would complete the rest on Saturday at 11am. On the Wednesday prior to that, the Tenant asked the Landlord if he required any help with cleaning up the property. The Landlord declined however the Tenant ended up helping.
- In considering the evidence, it would appear from the text message correspondence between the parties, that the Tenant offered to assist the Landlord with the cleaning. It would be unreasonable to compensate the Tenant for her cleaning efforts given her intentions at the time were not made clear to the Landlord that she would charge at a later date.
- For these reasons, the claim is dismissed. Tenants claim - carpet cleaning
- The Tenant claimed $70.00 for cleaning of the carpet when they moved in. They submitted it wreaked of animal urine so to get rid of the stench, the Tenant hired a cleaner for the carpet. This smell and the staining was noted in the ingoing inspection report and photographs were provided of the stains. Text messages from the cleaner were provided to substantiate the costs.
- The Landlord denied the condition of the carpet being poor and odorous. The law
- A Landlord is obliged to provide the property in a reasonable state of repair which includes the carpet being free of stenches and heavy staining.
- In considering the evidence, I find it more likely than not from the photographs and ingoing inspection report that the carpet required further cleaning.
- The amount ordered is proved. Tenants claim - labour to remove the rubbish
- The Tenant claimed $1240.00 for the labour she provided at the start of the tenancy to remove the previous Tenants belongings. Photographs were provided of a substantial amount of rubbish and skip bins required to remove huge items of furniture. The Landlord had assured the Tenant prior to moving in that this would all be removed by the time her tenancy started.
- The Landlord attempted to remove much of this furniture on his own before the Tenant s moved in but was unable to. He submitted that he did the cleaning by himself but because he could not lift some of the larger items, the Tenants helped him.
- Section 37 RTA provides: “The tenant shall have vacant possession of the premises on the date on which, in accordance with the tenancy agreement, the tenant is entitled to enter into occupation of the premises”
- In considering the evidence, the Landlord failed to provide this for the Tenant by not removing the previous Tenants belongings. The Tenant claimed two weeks rent which I find reasonable from looking at the magnitude of rubbish left behind and estimating the amount of hours and manpower this took to remove.
- The amount ordered is proved. Tenants claim- harassment and verbal abuse
- The Tenant claimed $2000.00 compensation for the Landlords harassment and verbal abuse. The Tenant claimed the Landlord turned up without notice to the property on 26 April 2023 to discuss rent arrears. When he attended a property inspection in July 2023, he barged into the Tenants family meeting and was aggressive to the Tenant and her visitors. When the Tenant would report some of the damages to the property to the Landlord, he would start yelling at her or dismissing her. The Tenant claimed that dealing with the landlord was mentally draining. She reported his behaviour to the police in July 2023.
- The Landlord advised he attended the property without notice on 26 April 2023 to discuss rent arrears but he waited outside of the fence. The second time he attended in July 2023 was when the Tenants family were over. He became frustrated and intimidated when they started surrounding him. He ended up slamming his hand on the car and calling the Tenant names. The Tenant felt intimidated by this behaviour. The law
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- In considering the evidence, I find the Landlord has harassed the Tenant and clearly intended to. He admitted to losing his temper and to slamming his hand on the car on one occasion out of frustration. He called her names such as “Bitch, liar,loser, criminal and horrible person”. These incidents form a pattern of behaviour. As a result, the Tenant felt distraught and intimidated by the Landlord.
- During the hearing, the Landlord also handed some documents to the Tenant by placing it forcefully on the table. This was outright intentional and indicated some lack of awareness by the Landlord of his actions. The behaviour is unacceptable.
- For these reasons, I find the Tenant should be compensated $1000.00.
- As the Tenant has been substantially successful, name suppression is granted and the Landlord shall pay the filing fee.
- As the Landlord has not been successful, name suppression is not granted.