What was Tenancy Tribunal case 4796937 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 4796937?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4796937?

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

Where can I read the official tribunal order for case 4796937?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11143049-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4796937 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 4796937?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4796937?

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

Where can I read the official tribunal order for case 4796937?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11143049-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4796937 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders continued name suppression of the Tenant’s name and identifying details.
The interim suppression order granted to the landlord of her name and identifying details in earlier orders of the Tribunal dated 1 October 2024 and 29 October 2024 is lifted and no longer applies. No suppression orders apply to the publication of the landlord’s name of identifying details.
The stay that was placed on these proceedings by way of an order of dated 16 October 2024 is now lifted. No stay remains in place in relation to these proceedings.
The landlord’s application for arrears and compensation is dismissed.

Reasons

Both parties attended the hearing.
Ms Ward called a witness who, after giving evidence became a support person. [The tenant/s] also had a witness. The civil burden of proof
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. Background
There are a number of earlier orders in these proceedings. The first order made by Adjudicator Lamdin was made on 17 April 2024. This order found that the Tribunal had jurisdiction to hear the application.
An order dated 1 October 2024 gave the Tribunal’s decision in relation to the tenant’s application. Before her own cross application could be heard the landlord applied for a re-hearing of the decision made on 1 October 2024.
As a result of that application on 16 October 2024 I made an order staying proceedings pending the outcome of that re-hearing application. I dismissed that rehearing application by way of an order on 29 October 2024. The stay that was put in place is therefore lifted. The landlord’s claims
The Tribunal must now deal with the landlord’s application for compensation and rent arrears following the end of the tenancy.
At the hearing I first clarified the landlord claims because they had not been provided as ordered in the Tribunal’s order dated 1 October 2024 (and also as further directed to do when this was not done by that date). I am satisfied that the tenant has been adequately informed of the following claims that the landlord says she wants to pursue and which are the claims the Tribunal will hear: a. Arrears of $310 which later in the hearing changed to a claim for arrears of $230; b. Cleaning costs of $462; c. Carpet cleaning costs of $74; d. Carpet replacement costs of $280.
The landlord also sought to claim the costs of printing photographs for the hearing. I am not satisfied the tenant was adequately notified of this, so I did not accept this as part of the landlord’s application. In any event these are not costs that the Tribunal would usually award (s 102, Residential Tenancies Act 1986 (RTA)). Unlawful premises
As I advised the parties at the hearing because the Tribunal has already determined that the premises are unlawful residential premises (Order dated 1 October 2024), section 78A(3) RTA applies. That section states: Despite anything to the contrary elsewhere in this Act – (a) Unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord – (i) Any sum found to be owing by way of rent in arrear; or (ii) Any other sum by way of damages or compensation.
In other words, unless there are special circumstances here that make it unjust not to award rent arrears or compensation, the Tribunal must not award them. Rent arrears claim
The landlord’s claim for rent arrears has not been clear throughout these proceedings (see paragraph 39 of my decision dated 1 October 2024 and the related footnote). At the start of this hearing before me in this application the landlord’s application for arrears still remained unclear.
The landlord first said she sought $310. She then changed her position midway in the hearing to say that she claims $230. This was because she had filed different rent summaries. One began on 12 September 2022 and ended on 11 February 2024 and one began on 15 September 2022 and ended on 14 February 2024.
I heard at the previous hearing that the parties considered the tenancy to have started on 15 September 2022 and ended on 14 February 2024. The landlord now says the tenancy began earlier on 12 September 2022.
The written agreement provided does not have an express start date for the tenancy but says that the first rent payment is due on 15 September 2022. It says that the tenant is to pay $300 for 10 days rent on that date and then pay weekly in advance.
I find that the written agreement is the best evidence to establish when the tenant was to pay rent from. I find that the agreement supports the finding that the tenant had to pay rent from 15 September 2023.
The tenant says that aspects of the landlord’s rent summary is wrong. He says that she has taken the bond out of the $300 he paid on 15 September 2022 which is not correct. He says the position is that he paid $210 in cash to the landlord on 13 September 2022 for the bond and then the $300, which he paid by bank transfer, was to cover the first 10 days rent from 15 September as per the written agreement.
In support of this the tenant provided a copy of his bond lodgement form on which it has been written that the bond of $210 was paid on 13 September. He also provided evidence of a cash withdrawal on 13 September 2023 at an ATM local to the tenancy property for the same amount as the bond.
The landlord’s bank records show $300 being paid on 15 September 2023.
Given the amount of probative evidence to support the tenant’s submissions I find it more likely than not that the tenant is correct about the payments made towards the bond and that the $300 he paid by bank transfer was for the first 10 days of rent and that he paid the bond separately on 13 September by cash.
This means that the landlord should not have deducted the bond from the $300 from the sum the tenant paid on 15 September but credited the whole sum of $300 towards rent.
The tenant also points to incorrect calculations on the handwritten arrears summary the landlord relies on.
Taking the above into account and also considering the banking evidence filed by the landlord I find that the tenant has paid $15,540 in rent and this is the amount that was payable for a tenancy of 74 weeks at the $210 per week payable. I find that there are no arrears.
In any event, even if there were arrears in the sums claimed by the landlord, no special circumstances have been established in this case that make it unjust to refuse to award the rent arrears. Compensation for cleaning including carpet cleaning
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) RTA.
The landlord says that the property was not left reasonably clean and tidy and that the carpet was stained. The landlord seeks compensation of 14 hours of cleaning time as well as compensation for the hire of a Rug Doctor.
A witness the landlord called to the hearing says he saw her cleaning and helped with the cleaning. He says he did not think the property was clean. He says there was a smoke and wet smell.
A witness the tenant bought to the hearing offered the alternative view that she considered that the property was clean and gave evidence that she had undertaken significant cleaning for the tenant including carpet cleaning.
I did not find the evidence of either witness to be particularly insightful because neither witness was independent and opinions as to whether something is reasonably clean will undoubtably vary.
There is no scientific way to determine what is reasonably clean and tidy. What is required is for the Tribunal to evaluate the evidence available (particularly photographs presented) and then consider whether the premises would be reasonably clean.
The RTA does not require the premises to be returned in an immaculate condition - only in a reasonably clean and tidy state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. A tenant is not required to rigorously clean all walls, skirting, ceilings, lightshades or behind appliances. It is common that a landlord wishes to clean to this "extra" level, but that is a business decision that a landlord makes at their cost.
The landlord appeared to have some unrealistic expectations of what a tenant is required to do to return a property in a reasonably clean condition. For example, asking the tenant’s witness, who had assisted with the cleaning, if she had washed the walls and ceiling. She also provided photographs to show how the rubber seals joining the windows had not been cleaned. This is not the level of cleanliness the RTA requires.
The landlord provided photographs of the condition of the property at the end of the tenancy. These consisted mainly of close-up photographs. The tenant provided some photographs of some of the property overall.
I accept that aspects of this small property were not left in an immaculate condition: The table had some crumbs and there was some debris/dust around the toilet. The toilet also could have been scrubbed further back to remove some black staining towards the back of it. However, as set out above returning the property to an immaculate state is not the test.
I have considered the carpet separately but in respect of the rest of the property I do not consider that the landlord has proven that the property was not left overall in a reasonably clean and tidy condition.
I do accept that the carpet is marked and not reasonably clean and tidy. However, the tenant says that the carpet had some stains at the start of the tenancy. In the absence of probative evidence setting out the condition of the carpet at the start of the tenancy (there are no pre-tenancy photographs or report) it is impossible to know the extent to which the tenant added to any staining, which he says was already present.
I have carefully considered the position but again see no special circumstances in this case that make it unjust to refuse to award the compensation sought. The landlord chose to rent out her studio again despite a previous order of the Tribunal which set out the unlawful nature of the premises. The tenancy ended when the landlord incorrectly involved the police and issued a trespass notice. In these circumstances I do not consider it unjust to refuse to make an award relating to cleaning.
The landlord’s claim for cleaning is dismissed. Compensation for painting walls and ceiling
A landlord must prove that damage to the premises 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 RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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 or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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) RTA.
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.
When considering such claims I must also 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. In calculating depreciation the age and condition of the items at the start of the tenancy and their likely useful lifespan is considered.
The landlord says that the ceiling and wall in the main room need painting because the ceiling was stained and that there is a hole in the wall which was hidden behind a picture.
The landlord provided one very poor quality close up photograph to evidence the staining of the ceiling. It is impossible to work out the extent of any staining from this photograph.
The landlord says that there was also a hole found under a picture which belonged to the landlord. She says the picture had been moved and rehung over the hole. There is no probative evidence of the hole itself because the landlord says it was quickly filled. A close up photograph was provided of a patch which the landlord says is the hole which has been filled and primed. There are no pre- tenancy photographs or report.
The tenant says he does not know anything about the hole. He says it was not there during the course of the tenancy. The picture it was said to be behind was provided as part of the tenancy and the tenant says he did not move any pictures. There is no probative evidence of any picture being moved. He says he was not minded to be decorative at the premises because the existing decoration in the property was enough for him.
I find this part of the landlord’s claim cannot succeed. There is insufficient probative evidence to prove a) that the ceiling was damaged during the course of the tenancy or if damaged, the extent of such damage and b) that the hole was made during the course of the tenancy.
The claim also cannot succeed because the landlord also cannot prove loss. The painting work she claims for has not been done and it is now over 9 months since the end of the tenancy. Her evidence of loss was limited to her own handwritten note describing a quote. I cannot be satisfied as to the quote or that work will be done or at what cost.
In any event, even if staining was proven I would not award compensation. I can see no special circumstances in this case that make it unjust to refuse to award the compensation sought. Carpet replacement
The landlord seeks $280 for second hand carpet to replace the existing carpet which she says could not be sufficiently cleaned.
As noted above the tenant says that the carpet had some stains at the start of the tenancy. In the absence of probative evidence or a written report showing the condition of the carpet at the start of the tenancy it is impossible to know the condition of the carpet at the start of the tenancy and the extent to which the tenant is responsible for any additional staining.
Even disregarding any staining, I find that the carpet was not fitted to a professional standard at the start of the tenancy because part of it is nailed down around a tiled the edge. The landlord says these are carpet tacks, not nails, but no matter the name used, the heads of the tacks or nails are easily visible and the finish is not professional. Further, the landlord says the carpet is 8 years old. The tenant says given that this is a one bedroom/living space the carpet would be subject to more wear and tear than in a usual home.
The carpet has still not yet been replaced despite the tenancy now ending 9 months ago.
I dismiss the landlord’s claim for carpet replacement. I am not satisfied as to the condition of the carpet at the start of the tenancy so the landlord cannot prove the extent of the tenant’s liability.
Further, the landlord’s evidence is that the carpet is 8 years old and the IRD depreciation rates for residential properties set out that carpet has a usual lifespan of 8 years. I would expect the lifespan of a carpet in a one main room dwelling (used for sleeping and living) to be even less than that due to the intensity of use. The carpet was also not professionally laid in part. Therefore, I find that the carpet was likely at or towards the end of its expected lifespan in any event.
Finally, I find the quote to be insufficient to prove loss. The landlord has had many months to replace the carpet but has still not done so. I cannot be satisfied it will be replaced.
In any event, I have carefully considered the position but see no special circumstances in this case that make it unjust to refuse to award the compensation sought.
This claim is therefore dismissed. Suppression
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 (s 95A, RTA).
The landlord has not been wholly or substantially successful and also, the landlord says she does not now seek name suppression. Therefore, the interim name suppression I awarded in my order dated 1 October and 29 October in respect of the landlord is lifted. No suppression order applies to the landlord.
The tenant continues to seek suppression of his name and identifying details. He has been substantially successful in his own application and wholly successful in relation to the landlord’s application. The tenant is awarded name suppression.

Tenancy Tribunal case 4796937 — Rent arrears

At a glance

Tenancy Tribunal case 4796937 — Rent arrears

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