What was Tenancy Tribunal case 4752290 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4752290?

Lawn Restoration: $300.00 awarded to landlord; Property Damage: $550.00 awarded to landlord; Sheer Curtains: $50.00 awarded to landlord

What type of tenancy dispute was case 4752290?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4752290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10755069-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4752290 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4752290?

Lawn Restoration: $300.00 awarded to landlord; Property Damage: $550.00 awarded to landlord; Sheer Curtains: $50.00 awarded to landlord

What type of tenancy dispute was case 4752290?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4752290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10755069-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4752290 — Property damage

Claims and awards in Tenancy Tribunal application 4752290 — net $900.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs to garage	$550.00	Repairs to garage
Sheer curtains	$50.00	Sheer curtains
Lawn restoration	$300.00	Lawn restoration
Net award	$900.00
Bond	$2,600.00
Total payable by Tenant to Landlord	$900.00

Claims and awards in Tenancy Tribunal application 4752290 — net $900.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs to garage	$550.00	Repairs to garage
Sheer curtains	$50.00	Sheer curtains
Lawn restoration	$300.00	Lawn restoration
Net award	$900.00
Bond	$2,600.00
Total payable by Tenant to Landlord	$900.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
[The tenant/s] are to pay Upper House Property Management Limited as agent for Tom & Felicia Alkin $900.00 from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $2,600.00 ([Bond number suppressed]) immediately apportioned as follows: Upper House Property Management Limited as agent for Tom & Felicia Alkin: $900.00 [The tenant/s]: $1,700.00
All other claims are dismissed.

Reasons

There are two applications which were heard together. The first hearing was attended by Ms Felicia Alkin, co-owner and landlord; [The tenant/s], appearing for the tenants; and Mr David Feng, who attended on behalf of Upper House Property Management Limited, the landlord (Upper House). This hearing was adjourned part-heard and a second hearing was held. This hearing was conducted by teleconference and was attended by all who attended the first hearing, and Mr Tom Alkin, co-owner and landlord.
As noted in the earlier order following the first hearing, this tenancy began on 28 May 2021 and ended on 16 October 2023. The landlord has applied for payment from the bond, compensation and exemplary damages following the end of the tenancy. This is application number 4744369. The claims include compensation for: • cleaning (including cleaning of blinds), • replacement of missing chattels (oven trays, sheer curtains, clock, curtains/drapes), • damage to floor, garage door, lawns, deck, and garage glass.
Exemplary damages are sought for the tenants: • not paying rent on time • failing to keep the premises clean and tidy • damaging the garage door, deck, walls, and floor • disturbing the neighbours • not leaving the premises clean and tidy.
The tenants have filed a cross application (application number 4752290) claiming a return of their bond. They also seek exemplary damages for the landlord/owner, Ms Alkin, sleeping in the garage on the property (breach of quiet enjoyment), and for the owners renting out the premises when they claimed they were moving back in.
Following the first hearing, the tenants agreed to return the curtains to the landlord, and the parties agreed to make suitable arrangements. The tenants also agreed to replace two sheer curtains.
In this order, Ms Alkin and Mr Alkin will be referred to as the landlord.
The landlord also claims travel expenses, for traveling to the premises to deal with issues as they arose, and for travel to attend the Tribunal hearing. General principles
In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Landlord’s application: 4744369 What are the tenant’s obligations at the end of the tenancy?
At the end of the 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) of the Residential Tenancies Act 1986 (the RTA).
The landlord claims breaches by the tenants of their obligations under section 40. These are considered below. Cleaning
The tenant’s obligation is to leave the premises in a reasonably clean and reasonably tidy condition. This is not necessarily to the standard a landlord considers acceptable for a new tenant. 1 Therefore, “reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable. 2 This does not equate to being commercially clean 3 , spotless 4 , or hotel/motel standard of cleanliness. 5 Therefore, a landlord may have some work 1 Ace Property Management Ltd v Owens DC Wellington CIV-2008-085-1441, 17 Dec 2008. 2 Housing New Zealand v Holloway TT Auckland TT215/93, 8 February 1993 3 Mills v Kiwi Property Care Ltd TT Hamilton 09/01418/HN, 27 July 2009 4 Reardon v Fahey Property Management Ltd [2016] NZTT Auckland 3149 at 6. 5 Richards v Scally TT Christchurch TT 2043/98, 21 July 1998 to get the premises up to standard for a new tenant 6 and cannot claim excessive time to clean and tidy the premises. 7
I have considered the evidence produced by both parties. Applying the principles set out above, I find that the tenants have complied with their obligation under the RTA to leave the premises in a reasonably clean and tidy condition. In making this finding I note that the tenants arranged for the premises to be professionally cleaned at the end of the tenancy. A copy of the cleaning invoice has been provided, showing that a full exit clean was completed, which included cleaning the inside windows, oven, and walls.
It may be noted that the evidence from the initial inspection report completed by Upper House on 27 May 2021, before the tenants moved in, shows that the oven was not clean at the start of the tenancy. The photographic evidence is that the interior of the oven and the oven glass needed cleaning, as noted on page 2 of this report. The tenants cleaning invoice shows that the oven was professionally cleaned at the end of the tenancy.
Upper House, the property management company, did not raise any issues at the time of the final inspection and was satisfied that the premises was cleaned to the necessary standard. Mr Feng has given oral evidence to this effect at the hearing.
The landlord cannot expect the premises to be left in a spotless condition, which appears to be the standard being applied by the owners of the premises. Accordingly, the landlord’s claim for compensation for $276.00 for the additional cleaning of windows and wiping down of curtain rods, based on a quote from the same cleaning company, is dismissed. The claim for the amount of $511.00 for professional cleaning of the blinds is also dismissed. Chattels
In terms of the landlord’s claim for compensation for the missing clock, I find the landlord has not provided persuasive evidence in support, so this claim is dismissed. The tenant has explained where the clock was kept, and states the accessories included with the clock were placed inside the wooden cupboard. The landlord accepts that it has been found, but now claims it is broken. The landlord’s evidence on this is disputed by the tenant.
There is conflicting evidence regarding the number of oven trays at the start of the tenancy. The evidence from the inspection report of May 2021, before the tenants moved in, shows only one oven tray. The landlord has not provided 6 Richards v Scally (above) 7 Falwasser v Armstrong [2011] NZTT Whakatane 523. evidence to show that there was a second tray. So, this claim has not been established, and is dismissed.
The curtains have been returned by the tenant. The landlord is unhappy with the condition of the curtains, but as they have now been received, this issue has effectively been resolved.
At the end of the last hearing the tenant agreed to replace the sheer curtains. The landlord states this was not done. So, the tenant is to compensate the landlord for the missing sheer curtains, in the amount of $50.00, as awarded above. Lawn and garden
The landlord claims the lawn and garden were untidy at the end of the tenancy, and rubbish was left behind They also claim the tenants failed to maintain the lawn and garden during the tenancy.
As a starting point, it is useful to consider the condition of the lawn and garden at the beginning of the tenancy, with reference to the pre-tenancy inspection report. This report shows that, on the whole, the lawn and garden was in a tidy condition at the start of the tenancy, although the garden was not immaculate. The photographs in the Upper House inspection report of May 2021 show a few areas of the garden needed further attention. For example, along the fence in photograph 113, some tall grass in photographs 138, 162, 166 and 169, and some weeds growing through the bricks in photographs 115 and 118.
Mr Feng has given oral evidence, which I accept, that the tenants had arranged for a gardener to attend to the lawn and garden at the end of the tenancy. The gardener also removed the rubbish. Upper House had no concerns regarding the lawn or the condition of the garden at the end of the tenancy. Again, as noted above, the standard is that it must be reasonably clean and tidy. I find the tenants have complied with this obligation regarding the condition of the garden and lawn at the end of the tenancy. Therefore, this claim is dismissed.
In terms of the condition of the lawn during the tenancy, the tenants have a continuing responsibility to mow the lawn and tidy the garden during the tenancy. The tenants have provided evidence, including text exchanges between themselves and the lawn mowing contractor. This shows they contacted the contractor in December 2022 to attend to the lawns. It appears from the texts that there were weather related delays, and delays due to the contractor’s workload. It also shows the tenants were following up with the contractor and making attempts to ensure the lawn was mowed.
The landlord’s photographic evidence is noted. The landlord has also specified the dates when these instances occurred. While there is evidence to show the lawn needed to be mowed, on specific dates, allowance must be made for difficulties mowing the lawn due to wet weather. The tenants had engaged a lawnmowing contractor to carry out this work, although ultimately it is their responsibility to ensure the lawn and garden are kept in a neat and tidy condition.
While acknowledging the landlord’s perspective, and noting the specific instances highlighted, it is unclear whether, in these instances, the tenants were notified and asked to remedy the situation. As this is an ongoing obligation, if there were concerns that the lawn and/or garden was not being maintained during the tenancy, ordinarily, this would be raised at the time with the tenants.
For the above reasons, this claim is dismissed.
The landlord’s claim for compensation arising from damage to the lawn is considered under a separate heading below. Whether the tenants kept dogs on the premises
The landlord claims the tenants kept dogs on the premises, in breach of their tenancy agreement. This is denied by the tenants. The landlord points to the scratches on the floor, windowsill and doorframe, and Ms Alkin’s conversation with a neighbour across the road, who had reported seeing dogs on the premises. There is no written statement from this neighbour.
Overall, I find the landlord has not established, with sufficient evidence, that the tenants kept dogs on the premise. In this regard, I accept [The tenant/s] oral evidence that while she walks dogs professionally, she never kept a dog at the premises. I note that she had asked the landlord’s permission to keep a dog, and accept that when permission was not given, she did not get one during her tenancy. She states that all the dogs that she walks stay in her van. She also notes the multiple inspections carried out by Upper House.
The evidence of Upper House is also to be noted, with Mr Feng being clear in his oral evidence that from all reports, there were no pets being kept on the premises.
In terms of the claimed damage to the floors and windowsill, the tenant denies that this is from dogs being on the premises, and is more likely from normal wear and tear. The landlord’s claim for compensation arising from damage is considered below. Compensation for damage: general principles
The landlord claims compensation for damage. To be successful, a landlord must prove that damage to the premises 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. See sections 40(2)(a), 41 and 49B of the RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) of the RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) of the RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) of the RTA.
In this case the landlord is insured for tenant damage and states the insurance excess is $550.00. The rent for the premises is $680.00 per week.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
When awarding compensation, betterment and depreciation must be taken into account. This is because the landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. When calculating depreciation, the age and condition of the items at the start of the tenancy and their likely useful lifespan must also be considered.

Is the tenant responsible for the damage to the premises?

The landlord claims compensation for the following: • Garage door and glass damage • Damage to wooden floors • Deck damage • Wall damage • Damage to the lawn
Both parties have provided evidence regarding the above claims. My findings are set out below. Garage
The tenants accept responsibility for the garage door damage and agree to pay the insurance excess of $550.00, which the landlord accepts. This is recorded above. Wooden floor
The landlord claims the tenants damaged the polished wooden floors and seeks $5,084.88 for professionally polishing the floor. The landlord has not undertaken this work and has provided a quotation. The landlord has also provided an email from the insurer stating that a total of eight excesses are to be applied to the claim, and the total excess is $4,400.00. In the absence of further details or a report, it is unclear how much of this total excess relates to damage to the floor.
I accept the landlord’s evidence that the floors were newly polished at the start of the tenancy, as shown in the photographs. Ms Alkin’s oral evidence is that they uplifted the carpet and then polished the floors themselves. Therefore, it has been established that the floor was in a good condition at the start of the tenancy.
However, the landlord’s own photographic evidence showing damage to the floor at the end of the tenancy is limited. The photographs in the final inspection report completed by Upper House show that, at the end of the tenancy, the floors were in a similar condition to the condition at the start of the tenancy. It was difficult to see the scratches from these photographs. At the hearing, the landlord accepted this was the case.
The landlord must also be able to show, with sufficient evidence, that the damage is more than fair wear and tear. The term “fair wear and tear” is not defined in the RTA. It has been described by Adjudicator Henwood in Sharma and Sharma v Tenant 8 as: ...the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant.
In this case it is apparent that the landlord is disappointed with the appearance of the floor at the end of the tenancy, and considers that it ought to be restored to its original condition. It is alleged that the tenants kept dogs on the premises, and that the scratches were caused by dogs. 8 [2021] NZTT 4294819, 4293319
There is the email from EcoFloors stating that it appeared the scratches and indentations were consistent with paw marks and heavy objects being dragged across the surface. However, it has already been found that the tenants did not keep pets in the premises. The quotation provided ($5,084.88) is for extensive work, involving the sanding and application of polyurethane to the entry, three bedrooms and living area, to a professional standard.
The landlord also relies on the letter from [an engineer] stating the scratches did not appear to be the result of normal wear and tear. While noting the qualifications of [the engineer], the reasons for this conclusion are not given. It is also unclear where these marks and scratches were located.
It must be noted that the tenants have lived at the premises for over two years and in that time, a certain amount of damage or deterioration of the floor from ordinary use can be expected. The landlord has also not established that the tenants breached their tenancy agreement by keeping dogs.
Overall, I find the evidence to be evenly balanced. While the landlord has observed marks and scratches on the floor, from the photographic evidence, this is difficult to see. The written statements do not specify the location of the marks. The available photographic evidence, as seen in the inspection reports from Upper House, do not clearly show the claimed marks and scratches on the floors. Furthermore, Upper House considered any damage to be the result of fair wear and tear.
Accordingly, I find that the landlord has been unable to show, with sufficient evidence, that the tenants are liable for the damage to the floors in the premises. Therefore, this claim is dismissed. Lawn damage
The landlord claims the tenants damaged the lawn by parking their cars on it. They seek $442.75 for restoration of the lawn.
The tenants accept that they parked their cars on the lawn, although they feel they should have been told not to do so. The tenancy agreement specifies that the tenants are not to park cars on the lawn. There is photographic evidence showing damage to the lawn. The landlord has provided a quotation for the lawn restoration, rather than an invoice for work completed. The landlord has indicated that they will likely attend to it themselves.
Taking into account the extent of damage, the pre-existing condition of the lawn (being of average condition) and the size of the affected area, the landlord is to be compensated in the amount of $300.00 for the damage to the lawn from the tenants’ cars. This is awarded above. Deck
The cause of the damage to the panel on the deck is unclear. The tenants are unsure how the panel broke. While the damage is likely to have occurred during this tenancy, the landlord has not established, with sufficient evidence, that the tenants either deliberately or carelessly caused this damage. Therefore, this claim is dismissed. Walls
The landlord’s photographs show some minor marks on the walls. The ingoing inspection report completed by Upper House on 27 May 2021 records that wear and tear was noted in the walls in the hallway, lounge, kitchen, bedrooms 1 and 3, laundry, and toilet. Only the walls in bedroom 2 and bathroom were reported to be in good condition. There is also no invoice showing that the landlord undertook work to repair any walls in the premises. Most of the claimed damage is likely due to pre-existing damage, or in keeping with damage from ordinary use. Therefore, this claim is dismissed. Exemplary damages
Exemplary damages can only be awarded for unlawful acts under Schedule 1A of the RTA. Even if it was established that there had been a failure by the tenants to keep the premises clean and tidy, or to leave the premises clean and tidy at the end of the tenancy, this would not amount to an unlawful act.
Failure to pay rent on time is also not an unlawful act under the RTA, and the landlord has not provided sufficient evidence to support this claim.
In terms of the claim concerning the disturbance of neighbours, section40(2)(c) of the RTA provides that a tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded. In this case, the landlord has not provided evidence to support the claim that the tenants were disturbing their neighbours. Accordingly, this claim is dismissed. Travel
The landlord also claims travel expenses for travelling between their home in [City 1] and [City 2], where the premises is located. This is not a cost that can be claimed from the tenants. The premises was professionally managed by an [City 2]-based agent on behalf of the landlord during this tenancy. Furthermore, where a landlord chooses to live in a different city to the location of their rental property, the tenant cannot be expected to meet these associated costs. This approach is consistent with the Tribunal’s decision in Bowden v Klasema. 9 Tenants’ application: 4752290
The tenants claim the return of their bond. As the landlord has filed a claim against the bond, the findings above will determine the amount returned to the tenants. The tenants also seek exemplary damages for the landlord, Ms Alkin, sleeping in the garage on the property (breach of quiet enjoyment), and for the owners renting out the premises when they claimed they were moving back in. Breach of quiet enjoyment
The tenants claim that while the landlord, Ms Alkin, had informed them in advance of coming onsite to access the garage (which was not part of the tenancy), she had remained there overnight in July 2023, and slept in the garage, resulting in a breach of their quiet enjoyment. The landlord states she only went to the garage to retrieve items and belongings, and stayed with a friend that evening. She denies sleeping in the garage. Detailed oral evidence regarding the events has been provided by both parties. The tenants have produced photographic evidence and there has also been some supporting documentary evidence from the landlord.
The RTA states that 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). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded. 10 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 this case, having considered the evidence and submissions of both parties, I find that this claim has not been established, to the required standard, which is on the balance of probabilities. The landlord has provided contrary evidence, and, overall, I accept Ms Alkin’s explanation for her presence during the times noted by the tenants.
Therefore, this claim is dismissed. 9 TT Lower Hutt TT230/90, 29 August 1990 10 See section 38(3) and Schedule 1A of the RTA. Validity of the notice to terminate the tenancy
The landlord has an obligation to give a valid notice when ending a tenancy. Under Section 60AA of the RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded.
On 12 May 2023 Upper House gave written notice to the tenants, on behalf of the landlord, that the owners wished to move back into the premises, and the tenants were given 63 days notice that the tenancy was to end.
The tenants claim the landlord, having given notice on the basis that they were moving back into the premises, failed to do so, and instead rented out the premises for short-term accommodation, advertising in the Airbnb website. The circumstances were detailed at the hearing.
The landlord has explained the situation, giving oral evidence and supporting documentary evidence about their circumstances, and the reasons why they had to change their plans after their children were denied entry into the local school. There were also delays with Ms Alkin’s surgery for her ankle injury, and later, they moved to Australia after Mr Alkin was offered a job there.
Upper House was managing the property at the time and gave the relevant notice to the tenants on the instruction of the landlord. Mr Feng has given evidence, which I accept, that they believed the owner was genuine in wanting to move back into the premises.
Overall, having considered the evidence and submissions of both parties, I find the landlord has not breached this obligation and therefore, no unlawful act has been committed. Accordingly, this claim is dismissed. Filing fee
Neither party has been substantially successful with their claims, so each is to bear the cost of their own filing fee. Name suppression
The tenants’ request for name suppression is granted, in view of the tenants’ interests outweighing the public interest in the tenants being identified.

Tenancy Tribunal case 4752290 — Property damage

At a glance

Tenancy Tribunal case 4752290 — Property damage

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions