What was Tenancy Tribunal case 4713083 about?

The tribunal order states: By way of declaration: the parties had a fixed term tenancy, contracted to end

How much money was awarded in case 4713083?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4713083?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4713083?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10049928-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4713083 about?

The tribunal order states: By way of declaration: the parties had a fixed term tenancy, contracted to end

How much money was awarded in case 4713083?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4713083?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4713083?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10049928-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4713083 — Rent arrears

Tenantcheck Insights

New Zealand Tenancy Tribunal Case 4713083 — Rent arrears | TenantCheck

Order

By way of declaration: the parties had a fixed term tenancy, contracted to end 31 January 2024
[The tenant/s] must pay [The landlord/s] $1,857.92 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,600.00 ([Bond number suppressed]) to [The landlord/s] immediately.
An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
All other applications are dismissed.

Reasons

Both parties attended the hearing, and both have made claims on the bond and against each other.
The first issue to determine is the nature of the tenancy agreement. [The landlord/s] argues that this was a fixed term tenancy contracted to end on 31 January 2024. [Tenant 1] and [Tenant 2] for the tenants argue that it was a periodic tenancy and so they were entitled to give notice and leave which they did in October 2023.
The background is that [Tenant 1] entered the tenancy with several others on a fixed term basis for 12 months from 4 March 2021. In December 2021, [Tenant 3] (the head tenant at the time) agreed verbally with [The landlord/s] to vary the lease by way of extending it to 31 January 2023. She followed that up with an email to him confirming that agreement which she asked him to have all tenants sign.
Then in November 2022 [Tenant 4] emailed [The landlord/s] copying in the other tenants, asking to “renew the lease”. Discussions were had which culminated in [The landlord/s] writing to all the tenants care of [Tenant 1] who was head tenant at the time confirming that the lease had been “varied to end 31 January 2024 by mutual consent”. He replied saying “thank you for the confirmation.”
[Tenant 1] agrees that his understanding was that they were on fixed term tenancies however, in 2023 when they started having issues with the way the tenancy was run, they looked into it and received advice otherwise. He points to the Tenancy Services website which specifically says: If both landlord and tenant agree, they can renew or extend the tenancy for a further fixed term. This agreement has to be in writing and signed by both parties.
He also references section 13B of the Residential Tenancies Act 1986 (RTA) which states: 13B Variations and renewals of tenancy agreements (1) Every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant. (2) The landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
He therefore submits that his advice and understanding was that as they had not signed the variations to the initial fixed term tenancy agreement, they are voided effectively making their tenancy a periodic tenancy from the expiry of the initial fixed term.
[The landlord/s] response is that although it was not signed, both parties agreed to the terms and acted upon them. It was only when the tenants wanted to leave early did they renege on that agreement; in all other respects it suited them. The law and discussion
Section 13B is clear that a variation to a tenancy does need to be in writing and signed by both parties. This is similar to section 13 of the RTA which directs the requirements of the contents of a tenancy agreement. Importantly the RTA specifies it as an unlawful act to fail to comply with some sub sections of section 13, but not for incompliance with section 13B. Put another way, the Government deems an incomplete tenancy agreement a more serious situation than failing to have a written and signed amendment.
Also of note is section 13C of the RTA which states: Notwithstanding anything to the contrary in any other enactment, no tenancy agreement, or variation or renewal of a tenancy agreement, shall be unenforceable on the grounds that it is not in writing. This section was presumably incorporated to ensure that if parties effectively agreed to a tenancy and acted upon that, i.e., the tenant moved in and paid rent, then it should be recognised for what it is, a tenancy, despite the lack of written contract.
This position is based on the common law principal of the establishment of a contract when the following elements are present:
Offer and acceptance.
Clear terms.
Intention to create legal relations.
Consideration.
Legal capacity.
Section 85(2) of the RTA specifically directs the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. What this means is that if a contract appears to have been agreed to and effected between the parties which would be enforceable under common law as a contract/agreement, it cannot subsequently be reneged on by one party on the basis that it was not technically formed because of particular sections of the RTA.
In this instance, based on the communications between the parties I am satisfied that a legally binding agreement to extend the fixed term for two further periods did occur. I make this finding specifically on the following: a. There is consensus in the emails that the term would be extended for a further 12 months each time. b. The oral evidence of the tenants is that there was an intention for there to be further fixed terms each time. c. There is text evidence of [The landlord/s] asking [Tenant 3] to print out and have all tenants sign the 2021 extension which he agreed to. d. The tenants clearly considered they were operating within a fixed term tenancy until contrary advice was obtained. e. [Tenant 1] and [Tenant 2] gave oral evidence of the extensive reasons they felt they needed to leave the tenancy using the specific words “why we left early”.
The tenants also put forward the alternative argument that one tenant should not have been able to bind them all in the extensions. In particular [Tenant 1] says he was not aware that [Tenant 3] agreed to the initial extension in 2021 on his behalf. [Tenant 2] also says he was not aware [Tenant 1] agreed to the second extension in December 2022 on his behalf.
Joint tenants on a tenancy agreement contract with their landlord on a joint and several basis. In this instance I am satisfied that [Tenant 3] and [Tenant 2] at the respective times were nominated head tenants by the other tenants. I am also satisfied that both discussed each extension with all tenants, and they provided their consent to their agreements at the relevant times.
I therefore find that the parties did have an agreement for their fixed term tenancy to extend to 31 January 2024. The fact that [Tenant 1] received conflicting advice from Tenancy Services is unfortunate and an issue he can take up with them, but does not negate the legal position. Ultimately Tenancy Services is a helpline, and their advice is only that, advice. The Tenancy Tribunal has sole jurisdiction to apply the law to New Zealand residential tenancies.
I make this finding with considerable sympathy for the tenants as I accept they were acting on advice, albeit incorrect advice, they were given. However, they knew [The landlord/s] considered their tenancy a fixed term, and they knew they had previously been of the same understanding, therefore it would have been prudent to have the matter clarified by the Tribunal before they took unilateral action to leave.
I also accept they were having difficulties with their landlord which caused them to wish to leave the tenancy. There were however mechanisms available to them to address those issues without unilaterally leaving their fixed term tenancy early.
Accordingly, I find the parties had contracted to a fixed term tenancy that was not due to end until 31 January 2024. Fixed term tenancies can only be ended early by agreement or Tribunal Order. 1 Neither occurred here. Landlord applications

How much is owed for rent?

In line with the above finding, the tenancy continued despite the tenants giving notice and vacating. [The landlord/s] claims rent until the day prior to the replacement tenancy which commenced on 3 December. This is a reasonable claim as pursuant to that fixed term contract the tenants were required to pay rent until the end of the fixed term or until it ended otherwise which it did here with the construction of a replacement tenancy.
Accordingly, as the tenancy ended on 2 December 2023, the tenants are liable for rent to that date.

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

[The landlord/s] claims compensation for cleaning, rubbish removal and garden work she was put to after the tenants vacated.
At the end of a 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, see section 40(1)(e)(ii)-(v) RTA.
The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy when they vacate. 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 and is to take into account the expected fair wear and tear. It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear which is ‘compensated’ by way of the rent payments the landlord receives.
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 Pursuant to section 66 of the RTA Interior clean
Both parties provided photos of the condition of the property at the commencement and end of the tenancy. Having assessed those, I find that the tenants did leave the inside of the property in a reasonably clean and tidy way when they vacated other than the oven, a cost they have consented to. I have made this finding particularly on the following: a. There was some mould and dirt in the property at the commencement of the tenancy. I also accept [Tenant 1]’s evidence that it was not clean when they moved in and they had to undertake a fair amount of cleaning themselves, an issue he had understood had been advised to [The landlord/s] at the time. b. Some of the items claimed in the cleaning invoice are not tenant responsibilities, such as the exterior sills and window cleaning, they are maintenance and accordingly a landlord responsibility. c. This was the only clean [The landlord/s] undertook between tenancies. d. This was a relatively long tenancy therefore fair wear and tear does need to be accounted for. e. As this was a fixed term tenancy the tenancy continued after the tenants had vacated therefore [The landlord/s] was statutorily required to provide the tenants with notice for her inspection, which she did not, and a time frame to remedy any issues she found such as any cleaning she required. She did not do so.
Accordingly, I dismiss the claim for compensation for cleaning but for the oven clean which was consented to. Gardens
There is a steep garden included in this tenancy which it is agreed the tenants were responsible to maintain during the tenancy by their agreement with the landlord. There were reasons the tenants did not have it cut back before they left but they say they should have been given the opportunity to remedy that failure before [The landlord/s] incurred the cost of doing so on their behalf.
I accept [The landlord/s] submission that she was mitigating the loss as she is required to do pursuant to section 49 of the RTA due to the tenants’ early departure of the tenancy. However, as discussed above, the tenancy was continuing therefore [The landlord/s] was obliged to provide the tenants opportunity to do the gardens themselves before the tenancy ended.
Both parties failed in their obligations here; the tenants to ensure the garden was tidy before they vacated and the landlord to give the tenants opportunity to rectify their failure. In taking into account the principle of section 85 of the RTA being the overall justice of the situation, I award $150 compensation. Rubbish
There were a few minor objects of the tenants’ left at the premise after they vacated. This included a shelter built by a tenant to house the rubbish. As this was a minor alteration done without landlord consent it was required to be removed at the end of the tenancy.
Again, the tenants argue they should have been given opportunity to remove the items before the cost was incurred. Again, as above, I agree given this tenancy effectively continued.
The invoice for the rubbish removal includes other items of maintenance. There is no specific time apportioned to the work involved in removing the rubbish, but the tip fee was $20. Having assessed the photos of the rubbish I do not consider it significant, and I take into account the failure to request the tenants to remove the items. Looking at the situation holistically, I do not consider a compensation award warranted in the circumstances and as such the application is dismissed.

Tenant application - Did the landlord fail in their maintenance obligations?

The tenants submit that [The landlord/s] failed in her maintenance obligations on a number of fronts over 2023 and bring a claim specifically for her failure to repair the incinerator within a reasonable time of it malfunctioning.
[Tenant 1] advised [The landlord/s] of the issue in February and [Tenant 4] followed up on 14 March. [The landlord/s] sent a plumber who inspected it on 22 March. When the issue remained, the tenants chased it up and were told in return to contact the plumber directly. The plumber told [Tenant 2] that he could not replace it without [The landlord/s] authorisation (this was corroborated with audio evidence).
When the issue remained, the tenants sent [The landlord/s] a 14-day notice to remedy on 23 May. The incinerator was replaced in September.
[The landlord/s] says she did all she could but was advised by several trades there was nothing wrong with it. She says she had an electrician look at it who could find no issue and when the plumber original attended he repaired the blocked drain and flushed it through and it was operative at that point (22 March).
[The landlord/s] further argues that the tenants had the trades’ contact details and could have followed up themselves.
Section 45 of the RTA details the landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
It is not a tenant obligation to follow up with trades on issues of maintenance. Their obligation is to advise their landlord of a maintenance issue 2 and then the responsibility lies with the landlord to investigate and rectify.
The evidence has established that [The landlord/s] was notified that the plumber’s attendance in March did not rectify the issue. It has not established to the required evidential standard, that being the balance of probabilities, that she had other trades investigate. She says she did however the tenants say they were present when those trades were also and did not see them check the incinerator. Further there is no evidence in writing from them although time was provided post hearing for that to be filed.
On the evidence I am satisfied that the incinerator was not operating effectively between March and its replacement in September. I accept [The landlord/s] evidence that the plumber who attended in March found nothing wrong with it. However, she was aware after March that an issue remained and it was another six months before it was replaced.
Assessing the situation as a whole, I find that there was an unreasonable delay between April and September in repairing the incinerator. I accept [Tenant 2]’s submission that this increased the rubbish costs, although it would not have been substantial. The effect was more one of inconvenience because they had to follow up with the plumber and [The landlord/s] to the extent of issuing a 14- day notice.
I find this is a breach of section 45 of the RTA and award $200 compensation for the lack of amenity which is considered reasonable in the circumstances.

Should the landlord have provided inspection reports?

2 Section 40(1)(d) of the RTA

There is disagreement as to whether [The landlord/s] provided the inspection reports after the inspections when requested.
Whilst it is best practice for a landlord to do so, there is no statutory obligation under the RTA for landlord to provide the report after an inspection. Accordingly, I make no finding on this issue. 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. This includes being successful in their application or in their defence to an application. As I consider the landlord substantially successful in her application and the tenants partly successful in their defence, I approve both applications for suppression.

Order

By way of declaration: the parties had a fixed term tenancy, contracted to end 31 January 2024
[The tenant/s] must pay [The landlord/s] $1,857.92 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,600.00 ([Bond number suppressed]) to [The landlord/s] immediately.
An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
All other applications are dismissed.

Reasons

Both parties attended the hearing, and both have made claims on the bond and against each other.
The first issue to determine is the nature of the tenancy agreement. [The landlord/s] argues that this was a fixed term tenancy contracted to end on 31 January 2024. [Tenant 1] and [Tenant 2] for the tenants argue that it was a periodic tenancy and so they were entitled to give notice and leave which they did in October 2023.
The background is that [Tenant 1] entered the tenancy with several others on a fixed term basis for 12 months from 4 March 2021. In December 2021, [Tenant 3] (the head tenant at the time) agreed verbally with [The landlord/s] to vary the lease by way of extending it to 31 January 2023. She followed that up with an email to him confirming that agreement which she asked him to have all tenants sign.
Then in November 2022 [Tenant 4] emailed [The landlord/s] copying in the other tenants, asking to “renew the lease”. Discussions were had which culminated in [The landlord/s] writing to all the tenants care of [Tenant 1] who was head tenant at the time confirming that the lease had been “varied to end 31 January 2024 by mutual consent”. He replied saying “thank you for the confirmation.”
[Tenant 1] agrees that his understanding was that they were on fixed term tenancies however, in 2023 when they started having issues with the way the tenancy was run, they looked into it and received advice otherwise. He points to the Tenancy Services website which specifically says: If both landlord and tenant agree, they can renew or extend the tenancy for a further fixed term. This agreement has to be in writing and signed by both parties.
He also references section 13B of the Residential Tenancies Act 1986 (RTA) which states: 13B Variations and renewals of tenancy agreements (1) Every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant. (2) The landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
He therefore submits that his advice and understanding was that as they had not signed the variations to the initial fixed term tenancy agreement, they are voided effectively making their tenancy a periodic tenancy from the expiry of the initial fixed term.
[The landlord/s] response is that although it was not signed, both parties agreed to the terms and acted upon them. It was only when the tenants wanted to leave early did they renege on that agreement; in all other respects it suited them. The law and discussion
Section 13B is clear that a variation to a tenancy does need to be in writing and signed by both parties. This is similar to section 13 of the RTA which directs the requirements of the contents of a tenancy agreement. Importantly the RTA specifies it as an unlawful act to fail to comply with some sub sections of section 13, but not for incompliance with section 13B. Put another way, the Government deems an incomplete tenancy agreement a more serious situation than failing to have a written and signed amendment.
Also of note is section 13C of the RTA which states: Notwithstanding anything to the contrary in any other enactment, no tenancy agreement, or variation or renewal of a tenancy agreement, shall be unenforceable on the grounds that it is not in writing. This section was presumably incorporated to ensure that if parties effectively agreed to a tenancy and acted upon that, i.e., the tenant moved in and paid rent, then it should be recognised for what it is, a tenancy, despite the lack of written contract.
This position is based on the common law principal of the establishment of a contract when the following elements are present:
Offer and acceptance.
Clear terms.
Intention to create legal relations.
Consideration.
Legal capacity.
Section 85(2) of the RTA specifically directs the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. What this means is that if a contract appears to have been agreed to and effected between the parties which would be enforceable under common law as a contract/agreement, it cannot subsequently be reneged on by one party on the basis that it was not technically formed because of particular sections of the RTA.
In this instance, based on the communications between the parties I am satisfied that a legally binding agreement to extend the fixed term for two further periods did occur. I make this finding specifically on the following: a. There is consensus in the emails that the term would be extended for a further 12 months each time. b. The oral evidence of the tenants is that there was an intention for there to be further fixed terms each time. c. There is text evidence of [The landlord/s] asking [Tenant 3] to print out and have all tenants sign the 2021 extension which he agreed to. d. The tenants clearly considered they were operating within a fixed term tenancy until contrary advice was obtained. e. [Tenant 1] and [Tenant 2] gave oral evidence of the extensive reasons they felt they needed to leave the tenancy using the specific words “why we left early”.
The tenants also put forward the alternative argument that one tenant should not have been able to bind them all in the extensions. In particular [Tenant 1] says he was not aware that [Tenant 3] agreed to the initial extension in 2021 on his behalf. [Tenant 2] also says he was not aware [Tenant 1] agreed to the second extension in December 2022 on his behalf.
Joint tenants on a tenancy agreement contract with their landlord on a joint and several basis. In this instance I am satisfied that [Tenant 3] and [Tenant 2] at the respective times were nominated head tenants by the other tenants. I am also satisfied that both discussed each extension with all tenants, and they provided their consent to their agreements at the relevant times.
I therefore find that the parties did have an agreement for their fixed term tenancy to extend to 31 January 2024. The fact that [Tenant 1] received conflicting advice from Tenancy Services is unfortunate and an issue he can take up with them, but does not negate the legal position. Ultimately Tenancy Services is a helpline, and their advice is only that, advice. The Tenancy Tribunal has sole jurisdiction to apply the law to New Zealand residential tenancies.
I make this finding with considerable sympathy for the tenants as I accept they were acting on advice, albeit incorrect advice, they were given. However, they knew [The landlord/s] considered their tenancy a fixed term, and they knew they had previously been of the same understanding, therefore it would have been prudent to have the matter clarified by the Tribunal before they took unilateral action to leave.
I also accept they were having difficulties with their landlord which caused them to wish to leave the tenancy. There were however mechanisms available to them to address those issues without unilaterally leaving their fixed term tenancy early.
Accordingly, I find the parties had contracted to a fixed term tenancy that was not due to end until 31 January 2024. Fixed term tenancies can only be ended early by agreement or Tribunal Order. 1 Neither occurred here. Landlord applications

How much is owed for rent?

In line with the above finding, the tenancy continued despite the tenants giving notice and vacating. [The landlord/s] claims rent until the day prior to the replacement tenancy which commenced on 3 December. This is a reasonable claim as pursuant to that fixed term contract the tenants were required to pay rent until the end of the fixed term or until it ended otherwise which it did here with the construction of a replacement tenancy.
Accordingly, as the tenancy ended on 2 December 2023, the tenants are liable for rent to that date.

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

[The landlord/s] claims compensation for cleaning, rubbish removal and garden work she was put to after the tenants vacated.
At the end of a 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, see section 40(1)(e)(ii)-(v) RTA.
The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy when they vacate. 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 and is to take into account the expected fair wear and tear. It is manifest that when a landlord rents premises to a tenant, that the tenants will live in the dwelling, and in the process cause some wear and tear which is ‘compensated’ by way of the rent payments the landlord receives.
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 Pursuant to section 66 of the RTA Interior clean
Both parties provided photos of the condition of the property at the commencement and end of the tenancy. Having assessed those, I find that the tenants did leave the inside of the property in a reasonably clean and tidy way when they vacated other than the oven, a cost they have consented to. I have made this finding particularly on the following: a. There was some mould and dirt in the property at the commencement of the tenancy. I also accept [Tenant 1]’s evidence that it was not clean when they moved in and they had to undertake a fair amount of cleaning themselves, an issue he had understood had been advised to [The landlord/s] at the time. b. Some of the items claimed in the cleaning invoice are not tenant responsibilities, such as the exterior sills and window cleaning, they are maintenance and accordingly a landlord responsibility. c. This was the only clean [The landlord/s] undertook between tenancies. d. This was a relatively long tenancy therefore fair wear and tear does need to be accounted for. e. As this was a fixed term tenancy the tenancy continued after the tenants had vacated therefore [The landlord/s] was statutorily required to provide the tenants with notice for her inspection, which she did not, and a time frame to remedy any issues she found such as any cleaning she required. She did not do so.
Accordingly, I dismiss the claim for compensation for cleaning but for the oven clean which was consented to. Gardens
There is a steep garden included in this tenancy which it is agreed the tenants were responsible to maintain during the tenancy by their agreement with the landlord. There were reasons the tenants did not have it cut back before they left but they say they should have been given the opportunity to remedy that failure before [The landlord/s] incurred the cost of doing so on their behalf.
I accept [The landlord/s] submission that she was mitigating the loss as she is required to do pursuant to section 49 of the RTA due to the tenants’ early departure of the tenancy. However, as discussed above, the tenancy was continuing therefore [The landlord/s] was obliged to provide the tenants opportunity to do the gardens themselves before the tenancy ended.
Both parties failed in their obligations here; the tenants to ensure the garden was tidy before they vacated and the landlord to give the tenants opportunity to rectify their failure. In taking into account the principle of section 85 of the RTA being the overall justice of the situation, I award $150 compensation. Rubbish
There were a few minor objects of the tenants’ left at the premise after they vacated. This included a shelter built by a tenant to house the rubbish. As this was a minor alteration done without landlord consent it was required to be removed at the end of the tenancy.
Again, the tenants argue they should have been given opportunity to remove the items before the cost was incurred. Again, as above, I agree given this tenancy effectively continued.
The invoice for the rubbish removal includes other items of maintenance. There is no specific time apportioned to the work involved in removing the rubbish, but the tip fee was $20. Having assessed the photos of the rubbish I do not consider it significant, and I take into account the failure to request the tenants to remove the items. Looking at the situation holistically, I do not consider a compensation award warranted in the circumstances and as such the application is dismissed.

Tenant application - Did the landlord fail in their maintenance obligations?

The tenants submit that [The landlord/s] failed in her maintenance obligations on a number of fronts over 2023 and bring a claim specifically for her failure to repair the incinerator within a reasonable time of it malfunctioning.
[Tenant 1] advised [The landlord/s] of the issue in February and [Tenant 4] followed up on 14 March. [The landlord/s] sent a plumber who inspected it on 22 March. When the issue remained, the tenants chased it up and were told in return to contact the plumber directly. The plumber told [Tenant 2] that he could not replace it without [The landlord/s] authorisation (this was corroborated with audio evidence).
When the issue remained, the tenants sent [The landlord/s] a 14-day notice to remedy on 23 May. The incinerator was replaced in September.
[The landlord/s] says she did all she could but was advised by several trades there was nothing wrong with it. She says she had an electrician look at it who could find no issue and when the plumber original attended he repaired the blocked drain and flushed it through and it was operative at that point (22 March).
[The landlord/s] further argues that the tenants had the trades’ contact details and could have followed up themselves.
Section 45 of the RTA details the landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
It is not a tenant obligation to follow up with trades on issues of maintenance. Their obligation is to advise their landlord of a maintenance issue 2 and then the responsibility lies with the landlord to investigate and rectify.
The evidence has established that [The landlord/s] was notified that the plumber’s attendance in March did not rectify the issue. It has not established to the required evidential standard, that being the balance of probabilities, that she had other trades investigate. She says she did however the tenants say they were present when those trades were also and did not see them check the incinerator. Further there is no evidence in writing from them although time was provided post hearing for that to be filed.
On the evidence I am satisfied that the incinerator was not operating effectively between March and its replacement in September. I accept [The landlord/s] evidence that the plumber who attended in March found nothing wrong with it. However, she was aware after March that an issue remained and it was another six months before it was replaced.
Assessing the situation as a whole, I find that there was an unreasonable delay between April and September in repairing the incinerator. I accept [Tenant 2]’s submission that this increased the rubbish costs, although it would not have been substantial. The effect was more one of inconvenience because they had to follow up with the plumber and [The landlord/s] to the extent of issuing a 14- day notice.
I find this is a breach of section 45 of the RTA and award $200 compensation for the lack of amenity which is considered reasonable in the circumstances.

Should the landlord have provided inspection reports?

2 Section 40(1)(d) of the RTA

There is disagreement as to whether [The landlord/s] provided the inspection reports after the inspections when requested.
Whilst it is best practice for a landlord to do so, there is no statutory obligation under the RTA for landlord to provide the report after an inspection. Accordingly, I make no finding on this issue. 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. This includes being successful in their application or in their defence to an application. As I consider the landlord substantially successful in her application and the tenants partly successful in their defence, I approve both applications for suppression.

Tenancy Tribunal case 4713083 — Rent arrears

Tenancy Tribunal case 4713083 — Rent arrears

Order

Reasons

How much is owed for rent?

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

Tenant application - Did the landlord fail in their maintenance obligations?

Should the landlord have provided inspection reports?

Order

Reasons

How much is owed for rent?

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

Tenant application - Did the landlord fail in their maintenance obligations?

Should the landlord have provided inspection reports?