Published tribunal order
Tenancy Tribunal case 4732369 — Rent arrears at 11 Hicks Crescent, Waikanae Beach, Waikanae 5036
Decided 16 Jan 2024 · Published 16 Jan 2024 · Application 4732369
- Rent arrears
- Leaks
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 Tenant name and identifying details.
- [The tenant/s] to pay Jade Rental Properties Limited $1,450.00 from the bond in accordance with the following table:
- The Bond Centre is to pay the bond of $2,940.00 ([Bond number suppressed]) immediately apportioned as follows: Jade Rental Properties Limited As Agent For Adele Wright And Simon Wright: $1,450.00 [The tenant/s]: $1,490.00
- All other claims are dismissed.
Reasons
- This was a 12-month fixed term tenancy that ended in October 2023 with both parties seeking redress from the other. The tenants have applied for compensation due to an alleged lack of maintenance regarding a leak, heating and the lawns. The landlord, represented by Ms Jefferies the property manager, and Ms Foote the manager, has cross applied for rent arrears and cleaning compensation.
- Before I discuss each claim it is useful if I outline the requirements for proof. In the Tenancy Tribunal applicants are required to establish their case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. It is up to the parties to establish their case and it is not for the Tribunal to extract the necessary evidence.
- Considerable evidence was provided in these applications, and whilst it has not all been referred to in this decision for brevity reasons, the parties can be assured it has all been considered. Landlord’s applications
How much is owed for rent?
- The amount sought for rent arrears is agreed.
Did the tenant comply with their obligations at the end of the tenancy?
- The landlord claims compensation for having to employ cleaners to clean the home after the tenants had vacated.
- The law under the relevant statute, the Residential Tenancies Act 1986 (RTA) regarding cleaning obligations is clear. Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) RTA). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) RTA).
- In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
- The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
- 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). 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. The evidence and discussion
- The photos provided of the ingoing inspection do show that some areas were not particularly clean and tidy at the commencement of the tenancy. For example, there were hairs, grime, and mould in the downstairs shower. There were also marks on walls and dirt on windowsills and window tracks, and dust on skirtings.
- The photos taken after the tenants had left show some marks on walls, dirt on some windowsills and tracks, dust on skirtings, mould in the ensuite shower and dirt in cabinetry.
- Ms Jefferies’ evidence is that the property was returned to a lower standard than when it was provided to the tenants; the tenants say it was returned to a higher standard to which they received it. They accept the mould in the ensuite shower but say they tried many ways of cleaning it, but it could not be removed from the silicon. They have been advised that this is a silicon issue.
- The amount of $350.75 is claimed but the areas cleaned are not itemised in the invoice, nor was the time taken. It is therefore difficult to assess what work was actually done. Further, the property was not cleaned again before the new tenants moved in.
- Having assessed the photos I am satisfied that the home was returned by the tenants in a reasonably clean and tidy way, relative to how it was provided to them at the commencement of the tenancy. Accordingly, the claim for compensation for cleaning is dismissed. Tenants’ claims
- [The tenant/s] claim that the landlord has breached their obligations under section 45 of the RTA to provide and maintain the premises in a reasonable state of repair with respect to a leak in the downstairs bedroom, the heating and the lawns. I discuss each claim separately as follows. Leak
- Within a month into the tenancy a considerable leak was noticed from the wall in the downstairs bedroom. The tenants notified Jade who sent a plumber from [plumbing company]. He investigated but could not find the source of the leak. He returned a few weeks later and checked the stormwater drains but could still not locate the source.
- The tenants say it continued to leak with moderate to heavy rain and was because of the way the flashing, spouting and drainage is set up. They consider the issue obvious and as such question the abilities of the plumber who could not find a problem.
- An inspection was held in March and the issue was again raised. Follow up emails were sent by the tenants in March and April asking for a dehumidifier. Ms Jefferies says the area was not wet when she inspected it in March, but the photos show a towel placed on the sill where the leak was worst and belongings moved slightly away from the wall.
- A text showing mould on the shelf and mouldy belongings was sent to Ms Jefferies in May by [The tenant/s] again asking for a dehumidifier to which there was no reply. Ms Foote visited on 1 June and did a moisture test which did not show any areas of damp. Nevertheless, she left a dehumidifier and instructed the plumber to attend again. He did and made some adjustments to the downpipe.
- In August the tenants sent Ms Jefferies an email saying the water was coming in through an electrical socket, however no substantive action was taken in response. In September they sent Ms Jefferies a video showing the extent of the water which was shown in the hearing and was certainly considerable. The plumber attended later in October after the tenants had moved out and ostensibly located the reason for the leak and fixed it.
- The tenants say the issue was extremely stressful for them. [The tenant/s]’s daughter would not sleep in the room from February, and they were concerned for her health as she has asthma. They say the issue meant that they tried to leave the tenancy early but were not allowed to by the owner without considerable cost. Ultimately the stress of the issue contributed to them separating.
- They seek a rent rebate and compensation for running the dehumidifier and for damaged belongings including a $400 keyboard.
- Ms Foote says they responded every time the tenants raised the issue, but the source was not easily identifiable. She provided an email from the plumber who said that he had asked [The tenant/s] to contact him the next time if happened so he could come immediately and see. She says the area was not damp when it was inspected in March and June and yet they still provided a dehumidifier and had the plumber investigate. She says it was not until the video was sent in September that the extent of the problem was realised. She considers they did all they could but were not adequately advised. The law
- 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. Furthermore, a landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. Notably, the Housing Improvement Regulations 1947 specify the minimum standards of fitness for houses which include a requirement that every house be free from dampness (regulation 15). There are also obligations in the Building Act 2004 that a building is insanitary if it has insufficient or defective provisions against moisture penetration as to cause dampness in a building (section 123).
- 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. Discussion & findings
- The photos of the ingoing inspection appear to show some water damage on the relevant skirting board. The property had been vacant for some time prior to this tenancy therefore it is uncertain when the leak originally commenced. I also accept the tenants’ evidence of the first big leak in November which [The tenant/s] parents cleaned up in the middle of the night. The video evidence shows the leak clearly still an issue in September the following year.
- There was therefore obviously an issue as the leak in certain rains was considerable and it was fixed after the tenancy ended. It has damaged the carpet and stained the skirting, as well as moulded some of the tenants’ belongings.
- I find the tenants credible and clear. They were in a difficult position and tried to firstly mitigate it and then leave. I accept that they are not using this as an opportunity to seek money but are concerned about the justice of the situation. I accept [The tenant/s] evidence that the plumber did not tell her to contact him as weightier than the email from the plumber who’s evidence could not be tested and is a friend of the owner’s. Accordingly, I am satisfied that there was a leak in the wall of the downstairs bedroom at times when it rained heavily.
- The written evidence clearly indicates that the tenants were trying to be released from their tenancy in May because of the issues with the bedroom and they had advised they were not using it because of the leak. I am satisfied that the landlord was made well aware of the leak throughout.
- Ms Foote’s defence that the tenants did not advise them clearly or regularly enough about the issue is not accepted. They did raise the issue; the fact that the plumber did not find a source did not remedy it. They raised it regularly and evidence was provided of its effects. They met their obligations under the RTA to notify of maintenance issues.
- Clearly the landlord took action at the initial advice in November of the leak. However, they were reminded about it at the inspection in March, April and May and Ms Foote did not attend until 1 June with the plumber coming shortly after. Although the owner was contacting his insurance company, nothing was further done during the tenancy, even when evidence of it affecting the electrics in August was shown and the video in September was sent.
- I am satisfied that the landlord failed in their obligation to remedy this maintenance issue within a reasonable time period. They did not check in with the tenants after the plumber had initially been to see if the issue remained and they did not investigate sufficiently or within a reasonable time period. Once the tenants had notified of the leak, it was then up to the landlord to ensure it was rectified. I accept they had problems identifying the source and the plumber did investigate, however the evidence does not show that they were persistent in addressing the matter. It also took them three months to provide a dehumidifier which is in breach of their requirement to mitigate an issue pursuant to section 49 of the RTA.
- Turning then to compensation. This Tribunal has ruled in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoy the premise in consideration of the rent that they pay. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
- I accept the evidence that at times [The tenant/s] daughter did sleep upstairs but she also clearly used the room. The fact that the moisture tester did not show any areas of damp in June indicates that the leak was not consistent, more likely just occurring in particular rains.
- Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
- Having regard to all relevant factors, I assess that an award of $1,500 is justified. I consider this takes into account the inconvenience the tenants faced in having to clean up after each rain, the delay in providing a dehumidifier, extra electricity in using a dehumidifier, the danger in having a damp room at times, the damaged belongings and the stress of the situation. I have also considered the landlord’s efforts to deal with the concern and that it only happened in some rains.
- I accept that [The tenant/s] daughter’s keyboard got wet however without evidence that it is no longer useable because of that, compensation is not available. Heater
- In June [The tenant/s] advised Ms Jefferies that the panel heater in one of the bedrooms had cracked right through and asked for it to be replaced as it was then unsafe to use. Whilst waiting for a response the tenants purchased their own heater. On 8 August Ms Jefferies asked the tenants if they would be happy to purchase a panel heater and install it and they would be reimbursed the cost. They did provide the invoice of the heater they had purchased but nothing was reimbursed. As such they took the heater with them when they vacated. The panel heater was not replaced by the landlord during the tenancy.
- Ms Jefferies explains that she could not raise a response from the owner initially which is why there was a delay.
- This is a clear breach of section 45. The heater broke and was not replaced during the tenancy. This happened during winter in one of the colder downstairs bedrooms.
- As the tenants took their heater with them, I do not order reimbursement of that cost. However, I am satisfied that they were put to the hassle of having to purchase their own heater and did not have a serious issue repaired in the remaining four months of their tenancy. I find that an award of $200 compensation is justified in the circumstances. Lawns
- [The tenant/s] is upset at the fact that the advertisement for the property claimed that the lawns would be maintained for the successful tenants. This was important to him as he worked very long hours. However, they were then told this was not actually a part of the tenancy, and they were left a broken weed eater and lawnmower to attend to them themselves. They had to pay $247 for the lawn mower to be repaired and then $40 a fortnight for someone to mow them for them.
- Ms Jefferies is clear that she advised them before the tenancy that the advertisement was wrong and amended it before they accepted the tenancy. The tenancy agreement clearly states that the tenants would be responsible for the gardens and advises that the weed eater and lawn mower were donated by the owner.
- As discussed at the hearing, the advertising was wrong, however it was rectified prior to the tenants signing the tenancy agreement. They therefore were aware of the situation when they signed and were not misled when they entered the tenancy.
- As the lawnmower was not provided as a tenancy chattel but donated to the tenants, it is not a landlord responsibility to repair it when it broke.
- Accordingly, this claim must be dismissed. 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. The tenants seek suppression and as they were successful to an extent in their claims, I approve that application.