What was Tenancy Tribunal case 4753674 about?

The tribunal order states: Application 4858360 is dismissed.

How much money was awarded in case 4753674?

Cleaning: $150.00 awarded to landlord; Cleaning: $150.00 awarded to landlord; Cleaning: $300.00 awarded to landlord; Dog Dropping Removal: $25.00 awarded to landlord; Electrical Call Out: $97.75 awarded to landlord; Electricity Use: $112.13 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Hedge Removal: $400.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Replace Meter Box: $180.00 awarded to landlord

What type of tenancy dispute was case 4753674?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4753674?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10626009-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4753674 about?

The tribunal order states: Application 4858360 is dismissed.

How much money was awarded in case 4753674?

Cleaning: $150.00 awarded to landlord; Cleaning: $150.00 awarded to landlord; Cleaning: $300.00 awarded to landlord; Dog Dropping Removal: $25.00 awarded to landlord; Electrical Call Out: $97.75 awarded to landlord; Electricity Use: $112.13 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Hedge Removal: $400.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Replace Meter Box: $180.00 awarded to landlord

What type of tenancy dispute was case 4753674?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4753674?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10626009-Tribunal_Order.pdf.

804 Churchill Street, Akina, Hastings 4122 Tenancy Tribunal Case 4753674 — Cleanliness

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4753674 — net $1,935.32 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$150.00	Carpet Cleaning
Repairs	$500.00	Repairs
Oven/stove cleaning	$150.00	Oven/stove cleaning
Electrical call out	$97.75	Electrical call out
Electricity use	$112.13	Electricity use
Curtain clean	$300.00	Curtain clean
Dog dropping removal	$25.00	Dog dropping removal
Replace meter box	$180.00	Replace meter box
Hedge removal	$400.00	Hedge removal
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,935.32
Bond	$2,280.00
Total payable by Tenant to Landlord	$1,935.32

Both parties attended the hearing. Mr Hall appeared for the property manager. Mr Sullivan, director of SS Properties, appeared for the owner. Mr Hooker represented himself. Background

This tenancy has been the subject of several previous applications.

In applications 4603450/ 4647529 the Tribunal determined that the landlord was was not entitled to end the tenancy by notice.

In applications 4664549/ 4652517 the Tribunal made an order by consent terminating the tenancy on 13 September 2023.

In application 4647529 the Tribunal ordered that the landlord pay the tenant exemplary damages for failure to provide a ground moisture barrier at the premises and dismissed the tenant’s other claims for breach of the landlord’s obligation to ensure the premises complied with Healthy Home standards.

As regards these proceedings, on 30 November 2023 the landlord applied for compensation for breach of the tenants end of tenancy obligations. The tenant then filed an application on 11 April 2024 seeking exemplary damages for breach of the landlord’s obligation to ensure the premises complied with Healthy Homes standards.

Following the initial hearing, an order was made on 29 January 2024 (“the January Order”) making findings on claims that were able to be determined on the evidence available. The hearing was then adjourned as the landlord had intended to present video evidence at the hearing but had been unable to. I determined that it was fair to provide the landlord an opportunity to present that video evidence and also to respond to new allegations made for the first time by the tenant at the hearing. The Claims

Before the hearing, the landlord asked that the tenant’s application(4858360) be struck out. I declined to do so without first hearing from the tenant.

Having heard from the tenant and considered that application, I am satisfied that it repeats the claims made in application 4647529. As those claims have been determined by an Order of the Tribunal, they stand unless overturned through an appeal or following a rehearing. I must accordingly dismiss that application.

Determination of the landlord’s claims follows the format of the January order as below. Carpet cleaning

At this hearing, the landlord was given the opportunity to have Mr Sullivan give evidence in response to the tenant’s claim that was told he need not worry about the carpet being left dirty because the cause was leaves blowing in from outside and because the carpet was going to be replaced as part of a planned refurbishment.

Mr Sullivan’s evidence was that that replacement of the carpet was a consideration but only if the carpets were unable to be cleaned, which they were. He says that the tenant was never told he needn’t leave the carpets clean when he left.

Section 40(1)(e) RTA places a clear obligation on tenants to leave the premises in a reasonably clean and tidy condition when vacating. The evidence satisfies me that the tenant did not do so and therefore the onus is on him to provide evidence proving that he should not be required to meet that obligation.

While Mr Hooker may have genuinely believed he had, the available evidence does not prove to me, on the balance of probabilities, that Mr Sullivan had relieved Mr Hooker of that obligation. Dog Damage

At this hearing the landlord was given the opportunity to show the pre tenancy video.

That evidence shows that the damage evident at the end of the tenancy was not there at the beginning of the tenancy.

It having been proved that the damage occurred during the tenancy and is more than fair wear and tear, the obligation is on the tenant to provide evidence proving that he is not responsible for the damage. At the evidence does not provide such proof.

For the reasons given in the January Order, the tenant’s liability for that damage is limited to $500.00. Hedge Removal

At this hearing, the landlord was given the opportunity to present evidence from Mr. Sullivan in reply to the tenant’s assertion that Mr Sullivan had authorised the work.

Having heard the parties’ evidence it seems fairly clear to me that Mr Sullivan was happy to benefit from the tenant’s work in tidying up the grounds, removing ivy growing through the hedges and so forth.

It seems to me unlikely that the tenant would have expended the time and effort he did in removing the hedges unless he thought he was authorised by the owner to do so. I take into account his evidence that after removing the ivy growing through them, there was no real substance left to the hedges and they needed to be removed.

Nevertheless, the photographic evidence shows that the extent of the hedge removal was extensive and beyond what the landlord had contemplated the tenant would do.

Section 42 RTA says that, “The tenant shall not affix any fixture to the premises, or make any renovation, alteration or addition of or to the premises, except— (a) in accordance with the tenancy agreement; or (b) with the prior written consent of the landlord...”

The tenant’s removal of the hedges, as opposed to a cleaning up or trimming of them, was so extensive as to be an alteration to the premises and the tenant breached his obligations under s.42.

In assessing fair compensation for that breach, it seems to me fair to take into account the benefit that the landlord has received from other work around the grounds that the tenant undertook, which the landlord would otherwise have had to do itself. I also take into account that the plant material removed by the landscaper, which the landlord is asking the tenant to pay for, will have included material removed by the tenant with the landlord’s approval and for its benefit.

The compensation awarded is reduced accordingly. Removal of dog faeces

The evidence satisfies me that as the tenant said, before the end of the tenancy Mr Sullivan removed the lawn mower that was to be provided as part of the agreement.

That may have made it more difficult for Mr Hooker find and remove dog droppings at the premises, but it was nevertheless his obligation to leave the premises reasonably clean and tidy come on, without dog faeces on the lawns.

The landlord is entitled to some compensation for having to clean it up, but the evidence does not show a quantity that should have needed more than half an hour's work. Replace shade cloth

This claim was dismissed in the January order. Oven clean

The pre tenancy video proves that the oven was in clean condition at the start of the tenancy. It was not left reasonably clean and tidy when the tenant vacated, and the landlord should be compensated for the cleaning cost which is proved by the invoice provided. Electricity call out/ meter replacement/ unpaid power

I am satisfied that the landlord is entitled to be reimbursed the sum claimed for electricity used at the premises but not paid for by the tenant.

The landlord alleges that the tenant interfered with the meter board: a. by changing the wiring to enable a supply of power to the premises bypassing the meter; and b. by breaking the sealed meter box so the meter could be slowed.

The landlord says because of that: a. a new metre had to be bought at a cost of $180; and b. there was no supply of hot water when the tenancy ended, resulting in an electrician’s call out.

The tenant’s evidence is that following cyclone Gabrielle the premises were without power and the supplier was rationing supply. He says that an electrician visited the property and even though he was not supposed to, was able to reconfigure the wiring so that there was an electricity supply to the premises outside the supplier’s ability to control it.

The tenant denies having himself interfered with the electrical supply in any way.

The landlord has made serious allegations against the tenant, of deliberate and unlawful conduct, by tampering with the electricity supply. The tenant denies those allegations.

As this is a civil jurisdiction the onus is on the landlord to provide evidence to prove the claims on the balance of probability ie. that the alleged conduct is more likely than not to have occurred, not beyond reasonable doubt.

In terms of the Tribunal’s approach to establishing proof of damage, s.49B(8) says: “If any destruction of, or damage to, the premises is proved to have occurred during any tenancy to which this Act applies,— (a) it is for the landlord to prove— (i) that any damage is not fair wear and tear; and (ii) that any destruction or damage occurred in circumstances described in subsection (1)(b); and (iii) that any insurance moneys are irrecoverable for the reasons described in subsection (4)(a); and (b) it is for the tenant to prove— (i) that any destruction or damage was not intentionally done or caused as described in subsection (1)(a); and (ii) that any destruction or damage was not caused by a careless act or omission described in subsection (2).”

The landlord has provided photographic evidence from the start of the tenancy, showing the meter board and wiring intact. Photographs from the end of the tenancy show the wiring disconnected and the sealed meter box having been opened. The landlord has therefore discharged the onus of proving that the damage occurred during the tenancy and is beyond fair wear and tear.

The onus is then on the tenant to provide proof that the damage did not occur intentionally or carelessly.

The tenant has given evidence that provides a plausible explanation for the initial reconfiguration of the wiring. That evidence does not though, provide an explanation for the damage to the meter box or for the disconnection of the supply wiring at the end of the tenancy, requiring a call out to re-establish the hot water supply.

For those reasons I find that the tenant is liable to compensate the landlord for the costs claimed Curtain cleaning

In the January order I noted my finding that the tenant had breached his obligation by not leaving the curtains reasonably clean at the end of the tenancy. I noted my initial view that the compensation claimed by the landlord appeared excessive.

At this hearing Mr Sullivan was given the opportunity to provide evidence about how the compensation claimed was calculated. He says was based on the per m 2 rate given by a curtain cleaning business.

The landlord has a duty to mitigate the loss resulting from the tenant’s breach (see s.49). The rates applied by commercial curtain cleaners allow for their business profit, which the landlord is not entitled to claim as compensation. The invoice does not indicate how much time was spent by the company directors cleaning the curtains.

The compensation awarded is based on my assessment of a fair award of compensation for the time taken to clean the curtains.

Because the landlord has had has claims upheld I reimburse the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4753674 — net $1,935.32 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$150.00	Carpet Cleaning
Repairs	$500.00	Repairs
Oven/stove cleaning	$150.00	Oven/stove cleaning
Electrical call out	$97.75	Electrical call out
Electricity use	$112.13	Electricity use
Curtain clean	$300.00	Curtain clean
Dog dropping removal	$25.00	Dog dropping removal
Replace meter box	$180.00	Replace meter box
Hedge removal	$400.00	Hedge removal
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,935.32
Bond	$2,280.00
Total payable by Tenant to Landlord	$1,935.32