What was Tenancy Tribunal case 4785537 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 4785537?

Compensation: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $580.00 awarded to landlord

What type of tenancy dispute was case 4785537?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4785537?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10407658-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4785537 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 4785537?

Compensation: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $580.00 awarded to landlord

What type of tenancy dispute was case 4785537?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4785537?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10407658-Tribunal_Order_Redacted.pdf.

138 Te Pene Avenue, Titahi Bay, Porirua 5022 Tenancy Tribunal Case 4785537 — Rent arrears

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138 Te Pene Avenue, Titahi Bay, Porirua 5022 Tenancy Tribunal Case 4785537 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4785537 — net $559.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$580.00		Rent arrears
Compensation for smoke damage	$500.00		Compensation for smoke damage
Filing fee reimbursement		$20.44	Filing fee reimbursement
Compensation for breach of s19 & s38		$500.00	Compensation for breach of s19 & s38
Total award	$1,080.00	$520.44
Net award	$559.56
Total payable by Tenant to Landlord	$559.56

Claims and awards for application 4785537 — net $559.56 NZD. Verify on MoJ.

Rent arrears

Amount: $580.00
Awarded to: Landlord
Reason: Rent arrears

Compensation for smoke damage

Amount: $500.00
Awarded to: Landlord
Reason: Compensation for smoke damage

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Compensation for breach of s19 & s38

Amount: $500.00
Awarded to: Tenant
Reason: Compensation for breach of s19 & s38

Total award

Landlord $1,080.00 · Tenant $520.44

Net award

Landlord $559.56

Total payable by Tenant to Landlord

Dismissed claims

Cleaning — as it has not been established in evidence. Did the tenants leave the garden as they found it?
Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Compensation Filing Fee Property damage Rent arrears Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ name and identifying details.
Shalen Kumar and Reema Lata must pay [The tenant/s] $600.44 immediately in accordance with the following table.
All other claims are dismissed.

Reasons

[The tenant/s] have filed claims against their landlords Mr Kumar and Ms Lata with respect to their fixed term tenancy that ended in January 2024. Mr Kumar represented the landlord at the hearing.
The tenants’ claims are for their bond to be refunded and for compensation for the following: a. Forcing them to move out earlier than intended. b. Breaching their quiet enjoyment. c. Failing to install insulation, shower extractor fan, heat pump and rangehood before the tenancy started. d. Failure to lodge the bond at the Bond Centre.
The law in New Zealand governing residential tenancies is the Residential Tenancies Act 1986 (RTA). Section 22B(2) of the RTA provides that, where a tenant applies to the Tribunal for refund of their bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Mr Kumar had not done so and has withheld the bond.
Despite Mr Kumar’s failure to comply with procedure, with the consent of the tenants in the interests of expediency, his claims were also discussed at the hearing. He seeks the following: a. $580 for one week’s missed rent. It was agreed by both parties that this should be paid; it pertains to the first week in the tenancy and was not paid because of a mistake Mr Kumar made in the agreement. This order is made by consent. b. $700 for painting in the kitchen and lounge due to smoke damage. c. $300 for garden works. d. $580 for cleaning.
I discuss each claim in detail below. Before doing so, however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish their case to the civil standard of the “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege and in doing so, they must adduce evidence to persuade the Tribunal that their version of events is the correct one. If they are unable to do so, then their claim cannot succeed.

What should happen with the bond?

The tenants paid Mr Kumar the equivalent of two weeks rent as bond. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received pursuant to section 19(1) of the RTA.
Mr Kumar did not do this and has held the bond back from the tenants upon the conclusion of the tenancy in January. It was primarily because of this that the tenants lodged their claim with the Tribunal.
The landlord should have lodged the bond at the Bond Centre. Mr Kumar drafted and signed a tenancy agreement that specifically notes this obligation. I therefore do not accept his submission that he was unaware of this requirement and find he has breached section 19 of the RTA.
The effect of this is that the tenants have had to apply to the Tribunal for their bond to be refunded and suffered the stress of being without the money for almost six months. The tenants have applied for compensation for this breach of the RTA, which I consider justified and discuss quantum at the end of this decision.
I turn to Mr Kumar’s claims against the bond.

Did the tenants leave the home reasonably clean and tidy?

Mr Kumar says that the tenants did not leave the property clean and tidy when they vacated. As such he says he spent 7 hours cleaning and $90 on cleaning materials. He has provided several photos, one showing two dead flies on the windowsill, one showing food stains down the side of the bench and one showing food stains on a skirting.
The tenants say they left the property reasonably clean and tidy when they vacated and provided photos of all the rooms of the house.
The tenant's statutory obligation 1 is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord.
The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also a tenant, generally, should not be expected to keep the premise any cleaner or tidier than it was at the start of the tenancy. A tenant is not required to rigorously clean all walls, ceilings 1 Section 40 RTA 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 the can re- tenant or sell. However, that is a business decision that a landlord makes at their cost.
The landlord’s scant evidence does not establish that the property was left unclean. The are minor issues identified in the photos but nothing that would take 7 hours to rectify. Mr Kumar did no other clean before he placed new tenants in the property. The tenants’ photos on the other hand do show a property left reasonably clean and tidy.
Accordingly, Mr Kumar’s claim for compensation for cleaning is dismissed as it has not been established in evidence.

Did the tenants leave the garden as they found it?

There was a section of the garden the tenants dug up to plant vegetables in and build a compost bin. They say Mr Kumar gave them permission to do so and did not raise it as an issue until they left the property.
Mr Kumar says he gave them permission to build planter boxes (as opposed to digging in the ground) and in fact gave them wood to do so. He says he expected them to return the area back to its original condition before they vacated but agrees they did not have a specific discussion about that expectation.
In assessing both parties’ oral evidence on this (as nothing in writing exists) I find it more likely than not that Mr Kumar did give [The tenant/s] consent to dig the area of grass into a garden. He did not raise it as an issue during the tenancy and gave them wood to assist. I therefore find that they were not required to restore the area to grass when they vacated as this had not been a condition of their agreement. To put it simply, I find it established that Mr Kumar allowed the planting and did not, when giving that consent, tell the tenants the area must be rectified when they left.
Further, even had I found that the tenants had acted outside of their permission, I do not accept Mr Kumar’s claim for $300 to reinstate the area. In support of this claim he has only provided a quote which refers to $300 for cutting trees. He verbally told me this was wrong but could not provide any other evidence to support that. Mr Kumar has therefore not established a loss as a result of the small area the tenants used as a vegetable patch.
Accordingly, this claim is dismissed.

Did the tenants damage the walls?

Mr Kumar claims $700 for having to repaint the kitchen and lounge walls. This was because they were smoke damaged, he says because the tenants regularly lit fires inside for their prayers.
The tenants agree they did observe havan pooja (worship ritual involving fire) on special occasions over the tenancy however they say they fire was only small and for about 20 minutes each time. They say they only did it sporadically and not to an extent where it would not have discoloured the walls. The cause of the discolouration they say is the lack of an extractor fan over the oven as it was not installed until 18 June (four months after the tenancy started) and when it was installed, it was ineffective as it was malfunctioning.
Mr Kumar argues that cooking food would not discolour the walls and provided the code of compliance to confirm the extractor fan was working when it was installed. His understanding of the tenants’ religion is that they would observe havan pooja weekly and he provided photos from their social media accounts that depict their rituals.
Having assessed the photos, I can see discoloration on the walls. This was a relatively short tenancy (less than a year) therefore I am satisfied that the marks are from smoke. I find it more likely than not that it was the smoke from the havan pooja rather than cooking without an extractor fan, especially as the tenants are vegetarian. The smoke created by an open fire, particularly one of this size and over which oil/ghee is melted, even if only lit for a short time, can leave a carbon residue on walls; cooking is unlikely to do so.
The tenants say they offered to come and wipe the walls clean post tenancy however their offer was refused. As discussed above, it was their obligation to leave the property clean when they vacated, therefore they should have undertaken a clean at that time. However, they did make this offer prior to the 20 th of January when the tenancy officially ended. As the tenancy had not ended, Mr Kumar was obliged to allow them this opportunity.
To claim compensation for such damage, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. I find that established here.
As this is proven, to avoid liability, the tenants must prove they did not carelessly or intentionally cause or permit the damage. 2 I find that this damage was caused carelessly. The lighting of such large fires inside, even for short periods with the windows open, was careless. 2 See sections 40(2)(a), 41 and 49B RTA.
Accordingly, I find the tenants liable for the damage. Mr Kumar has claimed $700 for the repainting of the living room and kitchen which he says were painted just prior to the tenancy. The tenants say it was a poor job as it appeared very thin.
In assessing compensation, I must take into account betterment and depreciation. 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. Therefore, in calculating depreciation, I must consider the age and condition of the paint work on the walls at the start of the tenancy and their likely useful lifespan.
As the landlord has not provided photos of the state of the walls at the beginning of the tenancy, I accept [The tenant/s]’s evidence that although the walls were painted, it was a light job. Having assessed all of the relevant evidence, I find that compensation of $500 is reasonable in the circumstances. The areas of damage are not large however there was certainly discoloration which needed to be remediated. I have reduced the amount claimed slightly to take into account Mr Kumar’s failure to allow [The tenant/s] to attempt to wipe down the walls, and depreciation.

Did the landlord require an earlier vacate date?

[The tenant/s] seek compensation for having to vacate the home in a rush and at a time they did not chose. Unfortunately, there was considerable miscommunication towards the end of the tenancy which I detail as follows.
The tenancy was a fixed term tenancy that was due to end on 20 February 2024. On 27 September Mr Kumar wrote to the tenants saying that it was due for renewal on 20 January at which time the rent would increase. [The tenant/s] wrote on 23 October asking for a renewal but acknowledging Mr Kumar had made reference to wanting the house vacant for renovations. There was no response to this email and [The tenant/s] says that they knew the original notice was wrong and felt bullied into giving their own notice.
Therefore, on 29 December he wrote to Mr Kumar saying: As per your noticed dated 27 September 2023, my tenancy contract will be due for renewal on 20 th January 2024. Please note that I do not wish to continue on to my tenancy contract, instead I would like to end my tenancy contract a little earlier...let me know if this works out for you and if need be I will look for someone else to continue further with this tenancy contract.
Mr Kumar took this as [The tenant/s] giving notice to end the tenancy on 20 January. He therefore immediately wrote back saying the final inspection would be on 19 January and last day of the tenancy would be the 20 th .
[The tenant/s] says he was just asking if it was possible to end the tenancy earlier and was not intending to give notice to the 20 th .
Section 51(3) of the RTA states that every notice to end a tenancy must be in writing, identify the relevant house, specify the date and be signed (this can be electronic signature). This notice does not clearly specify a date therefore it would have been better had Mr Kumar replied to [The tenant/s] asking him to clarify when he wanted to leave the tenancy.
[The tenant/s] say that Mr Kumar holding them to the 20 th caused them great stress and uncertainty as they had to find a home quickly and over the holiday period. I do not accept that Mr Kumar is responsible for this. They advised on 29 December (during the holiday period) that they were wanting to move out and referenced the 20 th , if not earlier, themselves. Whilst there was confusion and miscommunication, I find both parties contributed to this.
Accordingly, I do not find that Mr Kumar breached the RTA here and as such dismiss the claim for compensation. Did the landlord breach the tenants’ quiet enjoyment?
[The tenant/s] feel that Mr Kumar harassed them in the last months of the tenancy. They say he came to the property on numerous occasions without providing notice and forced them to leave early.
[The tenant/s]’s evidence is that in December an electrician came to her door she had not been advised of. She did not let him in. She also says that on a number of occasions Mr Kumar went to the shed out the back (which involves driving down their driveway past their home and being in their garden) without advising them of his intention prior. Further [The tenant/s] says Mr Kumar mowed the lawns at times without advising them prior, so grass clippings got all over the car and their washing.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises pursuant to section 38(2) of the RTA. Section 38 is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, where the landlord’s rights (such as to carry out maintenance or renovations) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
A landlord is not required by s48 of the RTA to give notice to enter the land around a tenanted home. Therefore, entry onto the land, but not the interior of the premises, might not be a breach of s48. However, in some circumstances, entry onto the land could be a breach of quiet enjoyment under s38 RTA if it is unreasonable.
Mr Kumar says he was only going to the property to mow the lawns which he had to do as [The tenant/s] said he would not, and to assess the back shed for renovations. He says he only went a couple of times.
Although Mr Kumar was not legally required to give the tenants notice each time he went to the back shed, given the proximity to the house and garden of the shed, it would have been best practice to do so. It would clearly have given the tenants a fright to see him on their drive and garden without knowing he would be there. I accept the tenants’ evidence that it was on a number of occasions that this happened, not just the once or twice Mr Kumar said it was.
Accordingly, I find that Mr Kumar did breach the tenants’ right to quiet enjoyment by attending the property on a number of occasions without advising them prior.
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. I do not find that Mr Kumar harassed [The tenant/s] by his actions as he was not intending to cause them stress.
I consider compensation for Mr Kumar’s breach of section 38 RTA below.

Did the landlord comply with his obligations in providing the home for rent?

[The tenant/s] say Mr Kumar breached the RTA by failing to install insulation, the shower extractor fan, the heat pump and rangehood before the tenancy started.
From 1 July 2019, all residential premises must be insulated to a minimum standard 3 . Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South 3 section 45(1)(bb) of the RTA & Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
Mr Kumar says the property was insulated sufficiently however when he had the heat pump installed, he had the ceiling insulation topped up at the same time. The evidence does not establish this claim incorrect; accordingly I am satisfied the property was sufficiently insulated at the commencement of the tenancy.
With respect to the extractor fan, rangehood and heat pump, they were all requirements of the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The compliance date for this tenancy with the HHS was 120 days after the commencement of the tenancy, being 20 June 2023. Therefore, the landlord had a grace period from the start of the tenancy to ensure the home complied with the HHS.
The heat pump was installed on 12 April, the range hood on 18 June and extractor fan on 14 April. Accordingly, all were installed within the required time frame. I am therefore satisfied that Mr Kumar complied with his legal obligations in this respect and the claim must be dismissed.

How much compensation should be ordered?

As above, I have found that the landlord has breached the following sections of the RTA: i. Section 19: the requirement to lodge the bond at the Bond Centre. ii. Section 38: the right to quiet enjoyment.
In compensation for these breaches [The tenant/s] seek a cumulative figure of $2,320.
The failure to lodge the bond is a serious breach of the RTA. Bonds are tenant money which is why they are to be lodged with an independent body. Mr Kumar made unauthorised deductions from the bond which were disputed by the tenants and has resulted in their application to the Tribunal for relief.
With respect to the tenants’ quiet enjoyment, I also accept this was a serious matter for them. They felt unsafe and harassed and Mr Kumar’s actions contributed to their decision to leave a home they had intended to reside at indefinitely. They did not want to move homes or change their children’s schools but felt they had to. Although they knew the shed was not for their use, they had not been warned that Mr Kumar would be using it himself and therefore his attendances were unsettling.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common sense approach is required. There are no general or absolute rules for calculating the amount of compensation but the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $500 for both breaches is justified. The tenants have been without their bond money for many months and suffered the stress of unexpected attendances by their landlord at their home and the necessity for these proceedings.
Further, because [The tenant/s] have substantially succeeded with their claims I have reimbursed the filing fee. 4 Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. I consider the tenants were substantially successful in their claims and therefore approve their application for suppression. I do not consider Mr Kumar was substantially successful in his claims; accordingly his application for suppression is dismissed.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4785537 — net $559.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$580.00		Rent arrears
Compensation for smoke damage	$500.00		Compensation for smoke damage
Filing fee reimbursement		$20.44	Filing fee reimbursement
Compensation for breach of s19 & s38		$500.00	Compensation for breach of s19 & s38
Total award	$1,080.00	$520.44
Net award	$559.56
Total payable by Tenant to Landlord	$559.56

Claims and awards for application 4785537 — net $559.56 NZD. Verify on MoJ.

Rent arrears

Amount: $580.00
Awarded to: Landlord
Reason: Rent arrears

Compensation for smoke damage

Amount: $500.00
Awarded to: Landlord
Reason: Compensation for smoke damage

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Compensation for breach of s19 & s38

Amount: $500.00
Awarded to: Tenant
Reason: Compensation for breach of s19 & s38

Total award

Landlord $1,080.00 · Tenant $520.44

Net award

Landlord $559.56

Total payable by Tenant to Landlord

Dismissed claims

Cleaning — as it has not been established in evidence. Did the tenants leave the garden as they found it?
Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Compensation Filing Fee Property damage Rent arrears Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ name and identifying details.
Shalen Kumar and Reema Lata must pay [The tenant/s] $600.44 immediately in accordance with the following table.
All other claims are dismissed.

Reasons

[The tenant/s] have filed claims against their landlords Mr Kumar and Ms Lata with respect to their fixed term tenancy that ended in January 2024. Mr Kumar represented the landlord at the hearing.
The tenants’ claims are for their bond to be refunded and for compensation for the following: a. Forcing them to move out earlier than intended. b. Breaching their quiet enjoyment. c. Failing to install insulation, shower extractor fan, heat pump and rangehood before the tenancy started. d. Failure to lodge the bond at the Bond Centre.
The law in New Zealand governing residential tenancies is the Residential Tenancies Act 1986 (RTA). Section 22B(2) of the RTA provides that, where a tenant applies to the Tribunal for refund of their bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Mr Kumar had not done so and has withheld the bond.
Despite Mr Kumar’s failure to comply with procedure, with the consent of the tenants in the interests of expediency, his claims were also discussed at the hearing. He seeks the following: a. $580 for one week’s missed rent. It was agreed by both parties that this should be paid; it pertains to the first week in the tenancy and was not paid because of a mistake Mr Kumar made in the agreement. This order is made by consent. b. $700 for painting in the kitchen and lounge due to smoke damage. c. $300 for garden works. d. $580 for cleaning.
I discuss each claim in detail below. Before doing so, however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish their case to the civil standard of the “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege and in doing so, they must adduce evidence to persuade the Tribunal that their version of events is the correct one. If they are unable to do so, then their claim cannot succeed.

What should happen with the bond?

The tenants paid Mr Kumar the equivalent of two weeks rent as bond. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received pursuant to section 19(1) of the RTA.
Mr Kumar did not do this and has held the bond back from the tenants upon the conclusion of the tenancy in January. It was primarily because of this that the tenants lodged their claim with the Tribunal.
The landlord should have lodged the bond at the Bond Centre. Mr Kumar drafted and signed a tenancy agreement that specifically notes this obligation. I therefore do not accept his submission that he was unaware of this requirement and find he has breached section 19 of the RTA.
The effect of this is that the tenants have had to apply to the Tribunal for their bond to be refunded and suffered the stress of being without the money for almost six months. The tenants have applied for compensation for this breach of the RTA, which I consider justified and discuss quantum at the end of this decision.
I turn to Mr Kumar’s claims against the bond.

Did the tenants leave the home reasonably clean and tidy?

Mr Kumar says that the tenants did not leave the property clean and tidy when they vacated. As such he says he spent 7 hours cleaning and $90 on cleaning materials. He has provided several photos, one showing two dead flies on the windowsill, one showing food stains down the side of the bench and one showing food stains on a skirting.
The tenants say they left the property reasonably clean and tidy when they vacated and provided photos of all the rooms of the house.
The tenant's statutory obligation 1 is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord.
The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also a tenant, generally, should not be expected to keep the premise any cleaner or tidier than it was at the start of the tenancy. A tenant is not required to rigorously clean all walls, ceilings 1 Section 40 RTA 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 the can re- tenant or sell. However, that is a business decision that a landlord makes at their cost.
The landlord’s scant evidence does not establish that the property was left unclean. The are minor issues identified in the photos but nothing that would take 7 hours to rectify. Mr Kumar did no other clean before he placed new tenants in the property. The tenants’ photos on the other hand do show a property left reasonably clean and tidy.
Accordingly, Mr Kumar’s claim for compensation for cleaning is dismissed as it has not been established in evidence.

Did the tenants leave the garden as they found it?

There was a section of the garden the tenants dug up to plant vegetables in and build a compost bin. They say Mr Kumar gave them permission to do so and did not raise it as an issue until they left the property.
Mr Kumar says he gave them permission to build planter boxes (as opposed to digging in the ground) and in fact gave them wood to do so. He says he expected them to return the area back to its original condition before they vacated but agrees they did not have a specific discussion about that expectation.
In assessing both parties’ oral evidence on this (as nothing in writing exists) I find it more likely than not that Mr Kumar did give [The tenant/s] consent to dig the area of grass into a garden. He did not raise it as an issue during the tenancy and gave them wood to assist. I therefore find that they were not required to restore the area to grass when they vacated as this had not been a condition of their agreement. To put it simply, I find it established that Mr Kumar allowed the planting and did not, when giving that consent, tell the tenants the area must be rectified when they left.
Further, even had I found that the tenants had acted outside of their permission, I do not accept Mr Kumar’s claim for $300 to reinstate the area. In support of this claim he has only provided a quote which refers to $300 for cutting trees. He verbally told me this was wrong but could not provide any other evidence to support that. Mr Kumar has therefore not established a loss as a result of the small area the tenants used as a vegetable patch.
Accordingly, this claim is dismissed.

Did the tenants damage the walls?

Mr Kumar claims $700 for having to repaint the kitchen and lounge walls. This was because they were smoke damaged, he says because the tenants regularly lit fires inside for their prayers.
The tenants agree they did observe havan pooja (worship ritual involving fire) on special occasions over the tenancy however they say they fire was only small and for about 20 minutes each time. They say they only did it sporadically and not to an extent where it would not have discoloured the walls. The cause of the discolouration they say is the lack of an extractor fan over the oven as it was not installed until 18 June (four months after the tenancy started) and when it was installed, it was ineffective as it was malfunctioning.
Mr Kumar argues that cooking food would not discolour the walls and provided the code of compliance to confirm the extractor fan was working when it was installed. His understanding of the tenants’ religion is that they would observe havan pooja weekly and he provided photos from their social media accounts that depict their rituals.
Having assessed the photos, I can see discoloration on the walls. This was a relatively short tenancy (less than a year) therefore I am satisfied that the marks are from smoke. I find it more likely than not that it was the smoke from the havan pooja rather than cooking without an extractor fan, especially as the tenants are vegetarian. The smoke created by an open fire, particularly one of this size and over which oil/ghee is melted, even if only lit for a short time, can leave a carbon residue on walls; cooking is unlikely to do so.
The tenants say they offered to come and wipe the walls clean post tenancy however their offer was refused. As discussed above, it was their obligation to leave the property clean when they vacated, therefore they should have undertaken a clean at that time. However, they did make this offer prior to the 20 th of January when the tenancy officially ended. As the tenancy had not ended, Mr Kumar was obliged to allow them this opportunity.
To claim compensation for such damage, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. I find that established here.
As this is proven, to avoid liability, the tenants must prove they did not carelessly or intentionally cause or permit the damage. 2 I find that this damage was caused carelessly. The lighting of such large fires inside, even for short periods with the windows open, was careless. 2 See sections 40(2)(a), 41 and 49B RTA.
Accordingly, I find the tenants liable for the damage. Mr Kumar has claimed $700 for the repainting of the living room and kitchen which he says were painted just prior to the tenancy. The tenants say it was a poor job as it appeared very thin.
In assessing compensation, I must take into account betterment and depreciation. 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. Therefore, in calculating depreciation, I must consider the age and condition of the paint work on the walls at the start of the tenancy and their likely useful lifespan.
As the landlord has not provided photos of the state of the walls at the beginning of the tenancy, I accept [The tenant/s]’s evidence that although the walls were painted, it was a light job. Having assessed all of the relevant evidence, I find that compensation of $500 is reasonable in the circumstances. The areas of damage are not large however there was certainly discoloration which needed to be remediated. I have reduced the amount claimed slightly to take into account Mr Kumar’s failure to allow [The tenant/s] to attempt to wipe down the walls, and depreciation.

Did the landlord require an earlier vacate date?

[The tenant/s] seek compensation for having to vacate the home in a rush and at a time they did not chose. Unfortunately, there was considerable miscommunication towards the end of the tenancy which I detail as follows.
The tenancy was a fixed term tenancy that was due to end on 20 February 2024. On 27 September Mr Kumar wrote to the tenants saying that it was due for renewal on 20 January at which time the rent would increase. [The tenant/s] wrote on 23 October asking for a renewal but acknowledging Mr Kumar had made reference to wanting the house vacant for renovations. There was no response to this email and [The tenant/s] says that they knew the original notice was wrong and felt bullied into giving their own notice.
Therefore, on 29 December he wrote to Mr Kumar saying: As per your noticed dated 27 September 2023, my tenancy contract will be due for renewal on 20 th January 2024. Please note that I do not wish to continue on to my tenancy contract, instead I would like to end my tenancy contract a little earlier...let me know if this works out for you and if need be I will look for someone else to continue further with this tenancy contract.
Mr Kumar took this as [The tenant/s] giving notice to end the tenancy on 20 January. He therefore immediately wrote back saying the final inspection would be on 19 January and last day of the tenancy would be the 20 th .
[The tenant/s] says he was just asking if it was possible to end the tenancy earlier and was not intending to give notice to the 20 th .
Section 51(3) of the RTA states that every notice to end a tenancy must be in writing, identify the relevant house, specify the date and be signed (this can be electronic signature). This notice does not clearly specify a date therefore it would have been better had Mr Kumar replied to [The tenant/s] asking him to clarify when he wanted to leave the tenancy.
[The tenant/s] say that Mr Kumar holding them to the 20 th caused them great stress and uncertainty as they had to find a home quickly and over the holiday period. I do not accept that Mr Kumar is responsible for this. They advised on 29 December (during the holiday period) that they were wanting to move out and referenced the 20 th , if not earlier, themselves. Whilst there was confusion and miscommunication, I find both parties contributed to this.
Accordingly, I do not find that Mr Kumar breached the RTA here and as such dismiss the claim for compensation. Did the landlord breach the tenants’ quiet enjoyment?
[The tenant/s] feel that Mr Kumar harassed them in the last months of the tenancy. They say he came to the property on numerous occasions without providing notice and forced them to leave early.
[The tenant/s]’s evidence is that in December an electrician came to her door she had not been advised of. She did not let him in. She also says that on a number of occasions Mr Kumar went to the shed out the back (which involves driving down their driveway past their home and being in their garden) without advising them of his intention prior. Further [The tenant/s] says Mr Kumar mowed the lawns at times without advising them prior, so grass clippings got all over the car and their washing.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises pursuant to section 38(2) of the RTA. Section 38 is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, where the landlord’s rights (such as to carry out maintenance or renovations) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
A landlord is not required by s48 of the RTA to give notice to enter the land around a tenanted home. Therefore, entry onto the land, but not the interior of the premises, might not be a breach of s48. However, in some circumstances, entry onto the land could be a breach of quiet enjoyment under s38 RTA if it is unreasonable.
Mr Kumar says he was only going to the property to mow the lawns which he had to do as [The tenant/s] said he would not, and to assess the back shed for renovations. He says he only went a couple of times.
Although Mr Kumar was not legally required to give the tenants notice each time he went to the back shed, given the proximity to the house and garden of the shed, it would have been best practice to do so. It would clearly have given the tenants a fright to see him on their drive and garden without knowing he would be there. I accept the tenants’ evidence that it was on a number of occasions that this happened, not just the once or twice Mr Kumar said it was.
Accordingly, I find that Mr Kumar did breach the tenants’ right to quiet enjoyment by attending the property on a number of occasions without advising them prior.
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. I do not find that Mr Kumar harassed [The tenant/s] by his actions as he was not intending to cause them stress.
I consider compensation for Mr Kumar’s breach of section 38 RTA below.

Did the landlord comply with his obligations in providing the home for rent?

[The tenant/s] say Mr Kumar breached the RTA by failing to install insulation, the shower extractor fan, the heat pump and rangehood before the tenancy started.
From 1 July 2019, all residential premises must be insulated to a minimum standard 3 . Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South 3 section 45(1)(bb) of the RTA & Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
Mr Kumar says the property was insulated sufficiently however when he had the heat pump installed, he had the ceiling insulation topped up at the same time. The evidence does not establish this claim incorrect; accordingly I am satisfied the property was sufficiently insulated at the commencement of the tenancy.
With respect to the extractor fan, rangehood and heat pump, they were all requirements of the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The compliance date for this tenancy with the HHS was 120 days after the commencement of the tenancy, being 20 June 2023. Therefore, the landlord had a grace period from the start of the tenancy to ensure the home complied with the HHS.
The heat pump was installed on 12 April, the range hood on 18 June and extractor fan on 14 April. Accordingly, all were installed within the required time frame. I am therefore satisfied that Mr Kumar complied with his legal obligations in this respect and the claim must be dismissed.

How much compensation should be ordered?

As above, I have found that the landlord has breached the following sections of the RTA: i. Section 19: the requirement to lodge the bond at the Bond Centre. ii. Section 38: the right to quiet enjoyment.
In compensation for these breaches [The tenant/s] seek a cumulative figure of $2,320.
The failure to lodge the bond is a serious breach of the RTA. Bonds are tenant money which is why they are to be lodged with an independent body. Mr Kumar made unauthorised deductions from the bond which were disputed by the tenants and has resulted in their application to the Tribunal for relief.
With respect to the tenants’ quiet enjoyment, I also accept this was a serious matter for them. They felt unsafe and harassed and Mr Kumar’s actions contributed to their decision to leave a home they had intended to reside at indefinitely. They did not want to move homes or change their children’s schools but felt they had to. Although they knew the shed was not for their use, they had not been warned that Mr Kumar would be using it himself and therefore his attendances were unsettling.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common sense approach is required. There are no general or absolute rules for calculating the amount of compensation but the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $500 for both breaches is justified. The tenants have been without their bond money for many months and suffered the stress of unexpected attendances by their landlord at their home and the necessity for these proceedings.
Further, because [The tenant/s] have substantially succeeded with their claims I have reimbursed the filing fee. 4 Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. I consider the tenants were substantially successful in their claims and therefore approve their application for suppression. I do not consider Mr Kumar was substantially successful in his claims; accordingly his application for suppression is dismissed.

Tenancy Tribunal case 4785537 — Rent arrears at 138 Te Pene Avenue, Titahi Bay, Porirua 5022

At a glance

Tenancy Tribunal case 4785537 — Rent arrears at 138 Te Pene Avenue, Titahi Bay, Porirua 5022

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What should happen with the bond?

Did the tenants leave the home reasonably clean and tidy?

Did the tenants leave the garden as they found it?

Did the tenants damage the walls?

Did the landlord require an earlier vacate date?

Did the landlord comply with his obligations in providing the home for rent?

How much compensation should be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What should happen with the bond?

Did the tenants leave the home reasonably clean and tidy?

Did the tenants leave the garden as they found it?

Did the tenants damage the walls?

Did the landlord require an earlier vacate date?

Did the landlord comply with his obligations in providing the home for rent?

How much compensation should be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions