What was Tenancy Tribunal case 4770997 about?

The tribunal order states: This order is reissued under the slip rule

How much money was awarded in case 4770997?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4770997?

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

Where can I read the official tribunal order for case 4770997?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10010345-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4770997 about?

The tribunal order states: This order is reissued under the slip rule

How much money was awarded in case 4770997?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4770997?

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

Where can I read the official tribunal order for case 4770997?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10010345-Tribunal_Order_Redacted.pdf.

Newlands, Wellington Tenancy Tribunal Case 4770997 — Cleanliness

Tenantcheck Insights

Order

This order is reissued under the slip rule 1 . It corrects the respondent name from the previous order. This order replaces the order sent earlier today. No other details have changed in this order.

The Bond Centre is to pay the bond of $2,780.00 (5570687-008) to [The applicant/s] immediately.

No other orders are made. 1 Slip rule High Court Rules 2016 11.10 allows for the correction of an accidental slip or omission. It states a judgment or order may be corrected by the court or the Registrar who made it, if it contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or b. is drawn up so that it does not express what was decided and intended.

Reasons

Both parties attended the hearing.

The tenants sought to be released from their tenancy and have the bond returned, claiming the premises was not as represented before signing the fixed-term tenancy agreement. At the hearing they requested some compensation/rent rebate.

The landlord sought compensation and fixed-term break costs.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Essentially, if the tenant application succeeded the landlord’s claim for associated break costs would fail. The compensation claims would still be considered. Was the premises misrepresented to the tenants committing to the fixed-term tenancy?

The tenants were overseas and moving to New Zealand. They relied on the online advertisement for what was a fully-furnished premises. Essentially, upon entry at commencement they immediately sought to end the tenancy, concerned about the condition of the premises at that time.

The landlord advised the photos used in the advertising predated the advertising for this tenancy by some time. It appears they were taken some 1-2 years earlier. The reason provided by the landlord for this was that the current tenant was busy with young children and taking photos that avoided her personal possessions would have been difficult. The landlord suggested a video walk-though could have been conducted, if requested by the tenants. The tenants responded they saw no need to request this based on the photos showing the premises. I am unaware of any disclaimer or information from the landlord regarding the possible change in condition from the advertised state verses the current condition.

I find the advertised photos significantly exaggerate the condition of the premises both at the time of advertising and, importantly, at commencement of this tenancy.

The landlord suggested the rent, being modest, reflected the condition of the premises. The issue for me is the failure of the landlord to ensure the advertised state aligned with the current condition of the premises. The weekly rent may be lower than market, as claimed by the landlord, but I do not consider it such that it might be deemed such an unconscionable bargain that any perceived failure of the tenant to conduct further due diligence prior to entering into a fixed-term tenancy agreement could form a viable defence against the claimed misrepresentation.

The landlord suggested the rejection of the tenancy was premeditated as they wanted to move elsewhere in the region. I have no strong view on this as it was the failure of the landlord to represent the premises accurately, and ensure it was in reasonable condition at commencement, that left it open to the rejection by the tenants later succeeding.

I will not recount all of the issues at commencement but the subsequent contractor activity appears to confirm the need for further maintenance. I do not consider the premises were cleaned to a reasonable standard for the commencement. I rely primarily on the photographic evidence from when the premises were advertised and then at commencement. I consider a number of contractors tasks conducted while the tenants were there that could, and should, have been conducted between tenancies. The premises was empty for three weeks before this tenancy and it is a reasonable expectation that such a period would be used more constructively, rather than later interfering with the tenants’ quiet enjoyment. The law

While expressed in different ways, the tenants rejected the tenancy at commencement, claiming it had been misrepresented. The occupancy, activities, and fixed-term obligations may have confused the situation but I consider such a claim was the intention of the tenants in filing their application.

Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction (but subject to section 78A, if that section applies), make orders including: (g)where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part): (h)any other order that the High Court or the District Court may makeunder any enactment or rule of law relating to contracts:

The circumstances of this application made consideration of the more fine- grained Contract and Commercial Law Act 2017 (“CCLA”) pertinent, specifically, ss 37 and 38.

Section 37 CCLA states a party may cancel a contract if a party is induced to enter into it by misrepresentation or if term is or will be breached: (1)A party to a contract may cancel it if— (a)the party has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to the contract; or (b)a term in the contract is breached by another party to the contract; or (c)it is clear that a term in the contract will be breached by another party to the contract. (2)If subsection (1)(a), (b), or (c) applies, a party may exercise the right to cancel the contract if, and only if,— (a)the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to the cancelling party; or (b)the effect of the misrepresentation or breach of the contract is, or, in the case of an anticipated breach, will be,— (i)substantially to reduce the benefit of the contract to the cancelling party; or (ii)substantially to increase the burden of the cancelling party under the contract; or (iii)in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.

A further statutory consideration is that the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities.

This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case. Finding

I find the tenants were justified in rejecting the fixed-term tenancy given the extent of misrepresentation of the premises condition prior to entering into the tenancy agreement. The subsequent issuing to the landlord of notices to remedy or other actions does not imply any acceptance of the fixed-term tenancy nor bind them. Landlord claims

The landlord sought break costs and compensation. Given the above tenant application determination I do not find grounds for the landlord to recover its costs in reletting and I make no orders regarding that.

While of no bearing given this, the same dated photo set was reused when this tenancy was readvertised, despite more recent photos being available. Why more recent photos were not used is unclear. Given I consider the photos overstate the actual condition, the continued use is concerning. The landlord had a number of queries and incurred effort and costs in establishing a new tenancy. There were a significant number of showings (a total of seven was mentioned). If necessary to determine costs, I would have had some consideration that any continued misrepresentation may have resulted in a number of the open homes being avoidable if a more accurate portrayal of the premises was provided upfront. As an aside, any possible inconvenience to local prospective tenants in making the effort to visit and inspect a premises that may have not been what expected, based on the advertising prior, would have been unfortunate. Other claims

The landlord also sought compensation for cleaning the over door, a hole in the exterior sub-floor cladding, and the insurance excess incurred by the owner due to an insurance claim for a damaged breakfast bar wall. Cleaning

The statutory requirement is that tenants leave the premises in a reasonably clean and reasonably tidy condition. The RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. What is required is that premises including the stove and bathroom fittings are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, ceilings lightshades, skirtings, behind appliances or the outside of the house. It is common that a landlord wishes to clean to this “extra” level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.

The landlord claimed the over door required cleaning. A comparative set of photos were provided; before and after. Unfortunately, the lighting makes an accurate assessment and comparison of the condition at both times problematic. I do not find the landlord has evidenced the need for further cleaning and the claim is dismissed. Damages

The first damage claim was the quoted cost to repair a hole in the exterior cladding. A photo shows the hole but also shows a pre-existing hole in the same panel. Any repair strategy would address both holes and given the pre- existence of one hole, as well as no effort to repair that prior, I do not find the landlord will incur any further loss in making the repair of the second hole. I therefore dismiss that claim.

The second claim was for an insurance excess. The breakfast bar panel had damage to the bottom right base at the start of the tenancy. The damage allowed further water penetration into the MDF wall with swelling and further damage. In what was a short tenancy, the rate of further damage appeared significant. The landlord claimed the damage was due to tenant careless behaviour.

I must first consider wear and tear.

“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.

The comparative photos were reviewed at the hearing. I am satisfied the damage to the wall was evident before this tenancy. The flooring in that area would be expected to be mopped, further consideration must also be given to the expected use of that area vis-vis possible liquid spills or such. Given the placement of the bar stools, some foot or stool impact with the wall should also be reasonably foreseeable. The compromised state of the panel at commencement is considered to have accelerated the later damage.

Like a number of other maintenance tasks, I consider the time to have remedied the panel damage was before this tenancy. The subsequent swelling and damage flows from that existing damage and I do not consider the condition at the end of the tenancy to be careless damage nor a tenant liability. The claim for the insurance excess is dismissed. Bond

I order the return of the bond to the tenants. I make no further orders for compensation to the tenants. They experienced impacts during their stay due to the condition of the premises but I consider that, apart from the bond, letting any further cost or compensation remain with each party balances the overall consideration of the merits and justice in this matter. Suppression

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

The landlord requested suppression in its application, the tenants did so at the hearing. As it has been wholly successful, suppression is ordered for the tenants. I make no suppression order for the landlord.

Order

This order is reissued under the slip rule 1 . It corrects the respondent name from the previous order. This order replaces the order sent earlier today. No other details have changed in this order.

The Bond Centre is to pay the bond of $2,780.00 (5570687-008) to [The applicant/s] immediately.

Reasons

Both parties attended the hearing.

The landlord sought compensation and fixed-term break costs.

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

I find the advertised photos significantly exaggerate the condition of the premises both at the time of advertising and, importantly, at commencement of this tenancy.

The circumstances of this application made consideration of the more fine- grained Contract and Commercial Law Act 2017 (“CCLA”) pertinent, specifically, ss 37 and 38.

I must first consider wear and tear.

Tenancy Tribunal case 4770997 — Cleanliness in Newlands, Wellington

At a glance

Tenancy Tribunal case 4770997 — Cleanliness in Newlands, Wellington

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions