What was Tenancy Tribunal case 4757676 about?

The tribunal order states: [The tenant/s], [The tenant/s] and [The tenant/s] are liable to pay Barfoot And

How much money was awarded in case 4757676?

Cleaning: $262.78 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $494.50 awarded to landlord; Rubbish Removal: $675.74 awarded to landlord

What type of tenancy dispute was case 4757676?

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

Where can I read the official tribunal order for case 4757676?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10009060-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4757676 about?

The tribunal order states: [The tenant/s], [The tenant/s] and [The tenant/s] are liable to pay Barfoot And

How much money was awarded in case 4757676?

Cleaning: $262.78 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $494.50 awarded to landlord; Rubbish Removal: $675.74 awarded to landlord

What type of tenancy dispute was case 4757676?

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

Where can I read the official tribunal order for case 4757676?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10009060-Tribunal_Order.pdf.

2817 River Road, Tuakau, Tuakau 2121 Tenancy Tribunal Case 4757676 — Property damage

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Order

Claims and awards in Tenancy Tribunal application 4757676 — net $1,453.46 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$262.78	Carpet Cleaning
Lock/key replacement	$494.50	Lock/key replacement
Rubbish removal	$675.74	Rubbish removal
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,453.46
Total payable by Tenant to Landlord	$1,453.46

[The tenant/s], [The tenant/s] and [The tenant/s] are liable to pay Barfoot And Thompson Limited as Agent for Kelly And [The landlord/s] $1,453.46 from the bond, calculated as shown in the table below.

The Bond Centre is to pay $1,453.46 from the bond of $3,400.00 (6502615-001) to Barfoot And Thompson Limited as Agent for Kelly And [The landlord/s] immediately.

The balance of the bond of $1,946.54 is to remain at the Bond Centre.

Reasons

Both parties attended the hearing on 22 February 2024.

The parties agreed to a fixed-term tenancy from 18 August 2023 to 19 August 2024. Two of the tenants, Mr Jones and Mr Murdoch (together, “the tenants”) vacated the premises on or about 10 February 2024. The remaining tenant, Ms Oliver, had vacated approximately two weeks before them.

The landlord applied for termination of the tenancy on 5 December 2023. The application was based on breach of the tenancy agreement. A notice to remedy served by the landlord on 23 November 2023 said that the studio room at the premises was not consented as a living area, and no one was permitted to sleep there.

By the time of the hearing the landlord’s claim was only for vacated compensation. The tenants agreed to have the new claims heard despite the lack of a formal amendment to the landlord’s application. The tenants’ cross- application was also heard. Landlord’s Application

The landlord claimed the cost of carpet cleaning following a flood at the property, rubbish removal, and locksmith’s costs. A claim for break lease fees ($870.00) was withdrawn at the hearing.

The evidence from both parties was that the flooding was caused by Ms Oliver deliberately disconnecting the hose of her washing machine while it was operating. Further, the majority (if not all) of the rubbish left at the end of the tenancy belonged to Ms Oliver, who was said to be illegally occupying a studio that was not consented for residential use. The tenants had returned their keys and garage remotes, but Ms Oliver had not done so, causing the locksmith’s costs.

The tenants submitted that Ms Oliver was the cause of these breaches, and they should not be held liable for losses caused by someone else.

The difficulty with this argument is that all three tenants signed the tenancy agreement, and therefore, jointly promised to comply with it. The District Court has held that this creates a joint tenancy at common law and has confirmed that the obligations of tenants under the Residential Tenancies Act 1986 (the Act) are also imposed jointly. A tenant who owes a joint obligation is liable for breaches of the same obligation by a co-tenant, even if they are not personally at fault (Harrison v Shields (DC Dunedin, NP435/00, 2 September 2002, Judge MacAskill)).

I have considered whether section 85(2) of the Act enables the Tribunal to come to a different conclusion based on what would be just in the circumstances. Section 85(2) provides: The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

The High Court has made clear that this provision does not create a licence for the Tenancy Tribunal to impose its views on the substantial merits and justice of the case unless its determination is based on general principles of law relating to the dispute (Welsh v Housing New Zealand (HC Wellington, AP 35/2000, 9 March 2001, Doogue and Goddard JJ)). The High Court has also said the subsection indicates that general principles of law should be interpreted or applied consistently with the merits and justice of the case “where possible” (Ziki Investments (Properties) Limited v McDonald (HC Auckland, CIV 2008-404-0038, 23 July 2008, Asher J)). In short, the Tribunal does not have carte blanche to decide the case on its own perception of the merits and justice.

The tenancy agreement provided for the tenants’ joint and several liability to the landlord “...for any indebtedness or damages, costs, claims, expenses, losses incurred or received by the Landlord...”. This reflects the usual position that tenants are jointly liable for the actions of their co-tenants. The tenants have agreed to take the tenancy on this basis.

My own perception of the merits and justice of this matter is that there is some unfairness in holding the tenants jointly responsible for the costs claimed (except the carpet cleaning, as I explain below). Most of the expenses could be seen as more properly for Ms Oliver to pay. However, I consider it is not possible to reconcile this subjective perception with the general principles of law to be applied, which impose joint liability.

This should not leave the tenants entirely without remedy. I do not see why the tenants could not apply to the Disputes Tribunal for an order requiring Ms Oliver to pay her contribution to the cost of rubbish removal and lock changes. The Tenancy Tribunal does not have jurisdiction in relation to disputes between tenants. I also note that it is for the landlord to decide how to enforce the order, against whom, and for how much.

Having concluded that the tenants are jointly liable, I address each of the landlord’s claims briefly below: Carpet Cleaning

The tenants pointed out that there was no ingoing inspection report but did not suggest the property was not in a reasonable condition when the tenancy began. The tenants had an obligation to leave the premises reasonably clean and reasonably tidy (section 40 of the Act).

The carpets do not look stained in the landlord’s “before and after” cleaning photographs. However, there was a lot of fur in the carpet. The landlord provided a photograph of material removed from the cleaning machine and noted that all the tenants had a pet cat. Notwithstanding the absence of an inspection report at the start, it seems the carpet needed cleaning at the end of the tenancy to remove pet hair.

The carpets needed cleaning because all the tenants had a pet cat, and not just because of the flooding caused by one of the tenants. I find that all three tenants are jointly liable for the cost of cleaning the carpet ($262.78). Locks

The landlord claimed $494.50 for the cost of re-keying the locks. For the reasons given above, despite this cost relating to the actions of only one of the tenants, I find that all three tenants are jointly liable for this expense. There was a joint obligation to return all keys at the end of the tenancy. Rubbish Removal

The landlord claimed $675.74 for rubbish removal costs. The landlord’s photographs show about 2 trailer loads of hard rubbish that had to be removed, according to the quotation. The claim for rubbish removal costs appears reasonable given the amount of items to be removed.

For the reasons given above, despite the contents of the studio belonging to only one of the tenants, I find that all three tenants are jointly liable for rubbish removal costs. Tenant’s Application

The tenants applied for refund of the bond and for compensation for alleged breach of the landlord’s managerial obligations as property managers. There was also a suggestion that the landlord had agreed to release them from the tenancy without claiming any further expenses. However, on this last point, the email from the landlord on 3 January 2024 only agreed to release the tenants from the tenancy without notice. It did not waive the right to claim expenses but in any event that claim has been withdrawn.

The tenants submitted that the landlord did not properly perform credit checks on Ms Oliver, and if they had been, they would not have taken the lease. In effect, the tenants argued for a duty of care owed by the landlord to the tenants in relation to reference and credit checks and claimed that the landlord did not exercise reasonable care.

It is not clear exactly what tenant checks the landlord performed, or what they revealed. I consider there is force in the landlord’s view that the three tenants wished to live together and so they were assessed as a group. I would add that the tenants had their own responsibility to check who they were moving in with and how they would perform their obligations as co-tenants. Without deciding the issue, I consider it is likely that a property manager, when performing checks of prospective tenants, does so on behalf of the owner of the premises and owes the owner a duty of care. The checks are performed to protect the owner’s interests. The property manager probably does not owe a tortious duty to disclose any concerns about an individual to the other prospective tenants. Indeed, this might even be a breach of privacy law.

Further, I consider a claim in negligence by the tenants against the landlord falls outside the Tribunal’s jurisdiction. Under the Act, the Tribunal has wide powers to apply contract law but does not have jurisdiction in the law of tort. Any claim must identify the breach of the tenancy agreement or the Act under which it is brought. Landlords have specific duties to, for example, maintain the premises in a reasonable state of repair and not to interfere with the tenant’s reasonable peace, comfort, or privacy in the use of the premises. The Act does not impose a general duty of care on landlords or property managers. The Tribunal is not a regulatory body and does not adjudicate on whether property managers have met any relevant professional standards. Bond and Filing Fee

I understood the bond ($3,400.00) was paid by the three tenants in proportions of roughly a third each. The bond was held as security for their joint obligations and should be applied jointly. I have refunded part of the bond to the landlord to meet the award.

The rest of the bond should remain at the Bond Centre for now. Although the rent is paid to date, the property has not yet been re-let and the fixed term does not expire until 19 August 2024. The landlord also intimated there may be further claims, and a claim for flood restoration costs may have been overlooked at the hearing. If pursued, these will require a further formal application.

The landlord’s application has been partly successful. I award the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4757676 — net $1,453.46 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$262.78	Carpet Cleaning
Lock/key replacement	$494.50	Lock/key replacement
Rubbish removal	$675.74	Rubbish removal
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,453.46
Total payable by Tenant to Landlord	$1,453.46

The Bond Centre is to pay $1,453.46 from the bond of $3,400.00 (6502615-001) to Barfoot And Thompson Limited as Agent for Kelly And [The landlord/s] immediately.

The balance of the bond of $1,946.54 is to remain at the Bond Centre.

Reasons

Both parties attended the hearing on 22 February 2024.

The landlord claimed the cost of carpet cleaning following a flood at the property, rubbish removal, and locksmith’s costs. A claim for break lease fees ($870.00) was withdrawn at the hearing.

The tenants submitted that Ms Oliver was the cause of these breaches, and they should not be held liable for losses caused by someone else.

Having concluded that the tenants are jointly liable, I address each of the landlord’s claims briefly below: Carpet Cleaning

The landlord’s application has been partly successful. I award the filing fee.

Tenancy Tribunal case 4757676 — Property damage at 2817 River Road, Tuakau, Tuakau 2121

At a glance

Tenancy Tribunal case 4757676 — Property damage at 2817 River Road, Tuakau, Tuakau 2121

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions