Published tribunal order
Tenancy Tribunal case 4662510 — Cleanliness
Decided 5 Dec 2023 · Published 5 Dec 2023 · Application 4662510
- Cleanliness
- Exemplary damages
Party names are redacted in the official published order.
Order
- This order replaces the Tribunal’s order made on 24 July 2023 under application 4497327.
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
- Janjira Hongrapipat must pay [The tenant/s] $1,970.44 immediately, calculated as shown in the table below.
- The parties’ claims are otherwise dismissed.
Reasons
Parties
- All parties attended the hearing. An interpreter translated for the landlord.
- The landlord’s application named the guarantors for the tenants but there was no need for them to be named because the landlord limited her claim to the bond. I have therefore removed the guarantors from the order. Claims
- The landlord has applied for compensation for the cost of reletting the premises, cleaning and wall repairs and the cost of replacing a damaged cooktop (insurance excess), payment from the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenants have applied for exemplary damages for the landlord’s failure to comply with her bond obligations and for inserting terms in the tenancy agreement that contravene or evade the Residential tenancies Act 1986 (the Act).
- The Tribunal made an order on 24 July 2023 on the tenants’ application for return of their $2,500 bond. The Tribunal ordered payment of the bond to the tenants less an agreed sum of $500 for damage to the cooktop. The landlord did not pay the bond to the Bond Centre and so the order required the landlord to pay $2,020.44 to the tenants. The landlord has not made any payment to the tenants under that order. The order dismissed the tenants’ claim for exemplary damages for the landlord’s’ failure to lodge the bond.
- I have dealt with all the parties’ claims in this order and so it replaces the Tribunal’s previous order. Cooktop
- The tenants accepted that the excess for the cooktop damage is $550 not $500 and so I have awarded the landlord the sum of $550. Reletting Costs
- This was a fixed term tenancy and the tenants wanted to end it early. The landlord agreed and she now claims the costs associated with the reletting.
- The landlord added some terms to the standard Tenancy Services tenancy agreement. One of them provided that the tenants could end the tenancy by giving 60 days’ notice. It also provided that in that case the bond would not be refunded to the tenants.
- The way that the tenancy was ended was untidy, but the tenants paid rent up to the end of the tenancy. Given that the tenants were entitled to end the tenancy early, and the landlord accepted the early termination, I can see no basis on which the tenants should have to pay the landlord’s costs of reletting. The agreement did not provide for that, and the tenants had the right to end the tenancy by giving notice. The term entitling the landlord to retain the bond was unenforceable for reasons given below.
- The landlord said that she incurred advertising and other costs due to the way that the tenants ended the tenancy. That makes no difference in my view. The tenants were entitled to end the tenancy and they had no obligation to find other tenants or to pay the landlord to do so. If ending the tenancy early had been an indulgence to the tenants, the landlord would have been entitled to recover her reasonable costs of reletting. But it wasn’t. It was the tenants’ right.
- This claim is therefore dismissed. Cleaning and Wall Damage
- The landlord claims $1,500 for the cost of cleaning the premises and repairing wall damage.
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy.
- The tenant must not intentionally or carelessly damage the premises.
- To recover compensation for damage to the premises a landlord must prove that the damage 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.
- The landlord produced a photograph showing a shower cubicle in need of some additional cleaning. The tenants produced a similar photograph. That was the extent of the landlord’s evidence relating to the cleanliness of the premises.
- The shower was not left reasonably clean. I am satisfied that the premises were otherwise left reasonably clean and tidy.
- The landlord produced more photographs showing the condition of various walls and a ceiling in the premises. Most of the photographs show fair wear and tear in my view. There were a few areas showing minor damage that was beyond fair wear and tear. The tenants accepted responsibility for them. I accept that they needed some repair and painting.
- In my assessment the reasonable cost to clean the shower and repair the paint the damaged areas is $500 and I have therefore made that award.
- That disposes of the landlord’s claims. The Tenants’ Claims Bond
- The Tribunal previously dismissed the tenants’ claim for exemplary damages for the landlord’s failure to lodge the bond. It is reprehensible that the landlord has neither lodged the bond nor complied with the Tribunal’s order to pay the bond after deduction for the cooktop to the tenants. There is no excuse for it. If there was a legitimate way to penalise the landlord for her behaviour, I would do it. But I cannot go behind the previous order and so I must dismiss this claim. Unlawful Terms
- No person may enter any transaction, contract or arrangement, or do anything: a. that contravenes, or will contravene, any provision of the Act; or b. for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of the Act. (Section 137(1) of the Act).
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See section 137(2) and Schedule 1A of the Act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
- I have referred to the term providing for forfeiture of the bond. The bond is the tenant’s money, and the tenant is entitled to have it returned unless the landlord has a legitimate claim on it (such as for rent arrears or damage). The term would allow the landlord to retain the bond in circumstances where the landlord has no legitimate claim on the bond. That would amount to a penalty which would be contrary to s32(1) of the Act.
- There is another term of the agreement that appears to make the tenants liable for professional cleaning of the premises when the tenancy ends. Tenants are required to leave the premises reasonably clean and tidy and how they achieve that is up to them. Landlords cannot dictate how they do it and they cannot insist on professional cleaning when it may not be necessary.
- These two terms contravene the Act and are an attempt to evade it. Inserting them in the agreement is an unlawful act. The fact that the tenants had the option of refusing to sign the agreement is not a defence. Tenants often don’t know what their rights are. Landlords are expected to know better. When landlords propose to include terms that are unfavourable to tenants, they should first ensure that they are permissible. Inexperience as a landlord goes only so far to excuse the breach.
- These were potentially serious breaches of the tenants’ rights, and I am satisfied that they should attract a meaningful award of exemplary damages. The award of $500 takes into consideration the landlord’s relative inexperience. Filing Fees
- I make no award of filing fees on these applications because both sides have had some success. The award of the filing fee on the previous application has been carried over to this order. Result
- After the awards have been set off against each other the landlord must pay the tenants a sum that is $50 less than the previous order. Suppression
- Overall, the result is in the tenants’ favour. I have therefore given them name suppression.