Published tribunal order
Tenancy Tribunal case 4754974 — Cleanliness
Decided 18 Apr 2024 · Published 18 Apr 2024 · Application 4754974
- Cleanliness
- Property damage
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay [The landlord/s] $288.19 immediately, calculated as shown in table below.
Reasons
- [The landlord’s representative/s] appeared for the landlord. Both tenants appeared.
- The tenancy commenced on 02 March 2023 and ended 04 October 2023 after the tenant gave notice. Rent arrears were owing at the end of the tenancy. The parties agreed to release of the bond to cover the arrears, and the tenant has since also made an additional payment to the landlord. The landlord has produced a rent summary which confirms the amount owing. The balance of the bond and the payment made by the tenant comes to $2,114.00. I have deducted this from any award made against the tenant.
- On 01 December 2023, the landlord filed a claim that the tenant was responsible for damage to the carpet in the lounge, had failed to remove all rubbish, had not left the interior of the property and the grounds in a reasonable clean and tidy condition, had failed to leave the carpet reasonably clean, and had failed to return the keys provided at the commencement.
- For the damage to the carpet the landlord is claiming the insurance excess of $500.00, $1,426.75 for rubbish removal, $230.00 to clean the carpet, $570.00 to clean the inside of the house, $65.00 to mow the lawns, and $240.00 to re barrel the locks.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Did the tenant comply with their 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 Act. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. In determining what is reasonably clean and tidy the Tribunal must evaluate the evidence produced. It is expected that the tenant will leave the property in at least the same condition it was at the commencement.
- The landlord has provided inspection reports and photographs from the start and end of the tenancy. I have been able to make a proper before and after comparison. The pre tenancy inspection report also provides a photograph of the keys provided.
- Unfortunately, both tenants become unwell toward the end of the tenancy each spending time in hospital. The tenants state that they had planned to conduct a full clean and rubbish removal but were both physically unable to do so. While the tenant accepts that they are generally liable for cleaning and rubbish removal, they state that two car tyres and a plastic Christmas tree had been left in the garage by the previous tenant. The tenant also states that the property was not in the cleanest of states at the commencement, referring to the pre tenancy photographs show marks on the walls. The landlord accepts that there was pre- existing damage which was repaired after the pre tenancy inspection. The cause or nature of other marks shown in the pre tenancy report is less clear. The tyres and Christmas tree are shown in the pre tenancy photographs. The tenants state that they had been given an opportunity to return and collect items after the end of the tenancy but had been unable to do so.
- Having considered the evidence and heard from the parties, I am satisfied that the tenants have failed to leave the inside of the property in a reasonably clean condition. I do however accept the tenants’ submissions concerning the walls. I reduce the amount awarded for cleaning from $570.00 to $450.00.
- Prior to the end of the tenancy the tenant had started to clean up and had filled a large kip bin which then remained on the property. The photographs show a considerable amount of rubbish and other household items in the shed and inside the house including beds and a sofa. I award the landlord $1,426.75 which includes labour and disposal fees. I have removed the extra charge for disposal of the tyres.
- The tenants had three young children at the address, with three others also likely spending some time at the property. The photographs of the carpet taken at the end show soiling throughout. There is some staining to the carpet shown in the pre tenancy report. The tenants state that around August 2023, they arranged for the carpet to be professionally cleaned. There is, however, clear evidence of staining and soiling at the end of the tenancy that is over and above that shown in the pre tenancy report. The tenant states that the soiling is more likely that not children play slime or a similar substance.
- In this case I am deducting $30.00 for attempting to remove the stains already present and award $200.00.
- I am satisfied that the tenant has failed to return the lawns in the same condition they were at the commencement, once again because they were physically unable to mow the lawns.
- The landlord gave the tenant an opportunity to return the keys, but this did not occur, and to secure the property for incoming tenant the landlord had the locks re barreled and new keys cut. The amounts claimed are awarded in in full.
Is the tenant responsible for the damage to the premises?
- The only claim for damage concerns that to the carpet around a free-standing log burner in the lounge.
- 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. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
- 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).
- 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, which in this case is $500.00, 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 Act.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord. Damage that is found not to be the result of carelessness will be fair wear and tear.
- There is no dispute that the damage to the carpet occurred during the tenancy. It is also acknowledged that there was similar pre-existing damage to the carpet was present at the commencement of the tenancy. The issue is whether the damage has been the result of carelessness, as claimed by the landlord, or from an event out of the tenant’s control, an accident, thus constituting fair wear and tear.
- The log burner sits on a tiled hearth, position away from the wall, with carpet surrounding it on three sides. As stated, the pre tenancy photographs show some damage, likely caused by escaping embers. The tenants recall an incident in late August / early September 2023, when they were in the lounge watching television. The tenant states the door to the log burner unexpectedly “popped” open and material from the fire to spill on to the hearth and then the floor, prompting immediate action.
- The landlord states that the matter was not reported, and they had not previously experienced such an occurrence, suggesting user error. The tenant states that they had issues using an online portal provided by the landlord for reporting damage. Neither of the landlord’s representatives has been the property manager for this tenancy. The tenant state that they purchase wood burner logs from a reputable supplier, have had experience with fireboxes, and that this was the first time anything like this had occurred.
- Having heard from the tenants I am satisfied that more likely than not the damage was not the result of carelessness. The claim is declined.
- Surprisingly, there is no fire screen provided by the landlord. The landlord states that it is not necessary. Considering the pre-existing damage recorded before the tenancy, the landlord may want to reconsider doing so. Costs
- Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- Both parties seek name 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.
- The landlord has been substantially successful and is granted name suppression.
- 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.
- In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
- While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant who has found themselves in this position because of unwellness or injury. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95A (4). The Tribunal also orders suppression of the landlord’s name.