Published tribunal order
Tenancy Tribunal case 4718952 — Rent arrears at 4 Simon Place, Nawton, Hamilton 3200
Decided 26 Jan 2024 · Published 26 Jan 2024 · Application 4718952
- Rent arrears
Party names are redacted in the official published order.
Order
- [The tenant/s] to pay Harper Properties Hamilton Limited as Agent for Chester Lopes $729.64 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $729.64 ([Bond number suppressed]) to Harper Properties Hamilton Limited as Agent for Chester Lopes immediately. The Bond
- Centre is to pay the bond of $ 1,030.36 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- Ms Bargh and Ms Menzies appeared for the landlord. Shortly before the hearing the Tribunal received an email message from the tenant seeking an adjournment on the basis that they had only recently discovered the date of hearing and were presently away on holiday. The message confirms the email address as the one which the original notice of hearing was sent by Tenancy Services on 14 November 2023. I am satisfied that the tenant has had sufficient notice. The request for an adjournment is declined.
- The tenancy commenced on 18 February 2019. Around October 2019 there was a change of landlord. The tenant gave notice and the tenancy ended on 09 August 2023. On 24 October 2023, the landlord applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee.
- On 10 August 2023, the landlord sent the tenant an email setting out a list of outstanding matters, some of which are the subject of the claims. On the same date the tenant replied, without accepting liability, advising the landlord to complete the work and deduct the cost from the bond. It then appears that the tenant has subsequently changed their mind, and now challenges the release of the bond. As the matter has now been placed before the Tribunal, the onus is on the landlord to prove the claims made. The standard of proof is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the tenancy agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
How much is owed for rent?
- The landlord has provided rent records which prove the amount owing at the end of the tenancy. Law
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) of the Act. Cleaning and carpet cleaning
- Determining whether a tenant has failed to leave a property reasonably clean will involve an objective assessment of the evidence. The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994). The best evidence are photographs. In cases involving older properties, such as this one, the ability to make a comparison will also be informative.
- The photographs attached to the invoice, which is modest, showing the property at the end of the tenancy include the extractor fan, a part of a ceiling in the bathroom , inside the toilet bowl , a small area of wall in the bathroom , inside the wall mounted medicine cabinet, inside the vanity drawers in the bathroom and the inside of the cupboards in the kitchen , the external garage , and what appears to be the laundry tub. Based on the photographs the property can be described as well-worn and showing signs of wear and tear commensurate with its age. There is no pre tenancy checklist or photographs showing the state of cleanliness at the commencement of the tenancy. Without this evidence I am not able to make a proper assessment. The claim for cleaning is dismissed.
- The landlord claims that the carpet was not left in a reasonably clean condition. More so than with the general cleaning, without evidence as to the cleanliness or general condition of the carpet at the commencement of the tenancy, I am unable to be satisfied to the required standard that the tenant is responsible for the stains or soiling shown in the photographs. The claim for carpet cleaning is dismissed. Light bulbs
- The landlord claims that the tenant is liable for three missing light bulbs in the external garage and one inside the house. The landlord is claiming for another light bulb inside the house which they claim is blown. The landlord has produced photographs of the missing and blown bulbs. The landlord states that they have a common practice of ensuring that all lights are operating at the commencement of the tenancy. The landlord was, however, not the landlord at the commencement of this tenancy. Based on the evidence, I am not satisfied that the tenant is liable for the missing or blown bulbs and the claim is dismissed. Garden
- The landlord is claiming $275.00 to “cut vine growing over everything back to manageable size, trimmed a few bushes and weed then sprayed the gardens”. The inspection report of 17 December 2019 shows that the gardens are reasonably tidy. They appear to be of a type that can be easily maintained by spraying as opposed to requiring regular weeding. The tenancy agreement clearly states that the tenant is not to touch trees, bushes, or shrubs without the consent of the landlord. On the evidence, I am satisfied with two areas of garden that have not been maintained in a reasonable standard, that is comparable to how they were on 17 December 2019. I therefore award a portion of the amount claimed of $150.00 to weed and spray these areas. From this I deduct a credit of $25.09 already held by the landlord. Venetian blind and curtain rail
- The landlord is claiming $39.00 for a damaged venetian blind and $76.00 for a missing curtain rail.
- To succeed with a claim for damage the landlord must prove that 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.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- There is no evidence of the missing rail. There is no evidence concerning the condition of the venetian blind at the commencement of the tenancy. The photographs taken at the end of the tenancy show that the blind is well used and has signs of fair wear and tear. On the evidence, I am not satisfied that the damage complained of occurred during the tenancy, or that it is more than fair wear and tear. The claim is dismissed. Costs
- As the landlord has been partly successful, I order reimbursement of the filing fee. Suppression
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- The landlord does not seek name suppression. Although had they done so I do not consider that they have been wholly or substantially successful. The tenant has been substantially successful in these matters, and I order suppression of their name.