Published tribunal order
Tenancy Tribunal case 4832941 — Property damage
Decided 7 Aug 2024 · Published 7 Aug 2024 · Application 4832941
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- Real Property Management Limited As Agent For Rahul Rahul must pay [The tenant/s] $350.66 immediately, calculated as shown in table below. DescriptionTenant Compensation: Refund Cleaning $154.18 Compensation: Refund Shed Repairs $196.48 Filing fee reimbursement $20.44 Total award $371.10
- The Bond Centre is to pay the balance of the bond of $81.47 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- Both parties attended the hearing.
- The tenants have applied for refund of the bond and exemplary damages.
- The bond has been distributed to the parties in accordance with a one-party application to the bond centre under s22A Residential Tenancies Act 1986 (RTA). A small balance is held by the bond centre.
- The tenants’ claim is for reimbursement of some of the costs paid to the landlord from the bond. In particular, the tenants sought cleaning costs ($154.18) and shed repair/replacement costs ($1,000).
- The tenant’s application also claimed exemplary damages for an alleged breach of s49D RTA.
- At the hearing [Tenant 1] also referred to alleged breaches of s44A RTA. That section relates to early termination fees and is not applicable to this situation.
- I have considered claims for reimbursement of the cleaning costs, shed repair and the balance of the bond held at the bond centre. I have also considered whether it is appropriate to award exemplary damages under s 49D RTA. Background
- The Tenancy was for a fixed term from 6 December 2022 to 27 November 2023. The bond was $2,940.00.
- There were six joint tenants. The tenants are jointly and severally liable to the landlord.
- When the tenancy ended, the landlord asked for professional cleaning to be done. Some of the tenants agreed to that and engaged a cleaner suggested by the landlord.
- Following an exit inspection, the landlord sent an email to the tenants requesting $1,413.18 from the bond. The landlord provided a breakdown of the amount claimed, as follows: a. Additional cleaning - $154.18 b. Replacement Heat Pump Remote - $59 c. Garden Shed – Insurance Excess - $1,000 d. Carpet Stain Compensation - $200
- The landlord attached a draft bond refund form. That form recorded that $1,413.18 was to be paid to the landlord and $1,526.82 to the tenants. [Tenant 1] accepted the proposal by signing the draft bond refund form and returning it to the landlord on 18 December 2023. She also recorded that the amount to be paid to her was $254.47 (1/6 th of the total shown as payable to the tenants).
- The landlord claims that it did not receive the form from [Tenant 1].
- The other tenants did not return the bond form. At the hearing some of the tenants said that they believed that [Tenant 1] intended to make a claim to the Tribunal, so they didn’t do anything about the bond. They also advised that there had been a falling out and that the group were not speaking to each other at that time.
- The landlord was aware of the falling out. There must have been some discussion between some of the tenants and the landlord’s representative regarding the bond the amounts payable to each tenant because the bond refund form that the landlord sent to the bond centre was not the same as the one [Tenant 1] returned to the landlord.
- On 19 December 2023, the landlord sent a one-party bond application to the bond centre. The bond refund form sent to the bond centre stated that the amount to be paid to the landlord was $1,494.35 and $1,445.65 to the tenants. The form also recorded an uneven apportionment as between the tenants.
- There is a difference of $81.47 between the amount [Tenant 1] agreed the landlord could retain from the bond (by her email on 18 December) and the amount claimed by the landlord in the 19 December form. That is an amount which was in dispute between [Tenant 1] and one of the other tenants regarding cleaning costs.
- The bond centre paid $1,494.35 to the landlord as claimed in the 19 December form. The tenants are not satisfied with the way in which the bond centre responded to the one-party application. Those concerns are outside of the scope of this hearing. [Tenant 1] advised that the bond centre’s handling of the one-party application is under investigation.
- The landlord’s representative acknowledged that it made an error on the form sent to the bond centre. It received $81.47 more from the bond than [Tenant 1] had agreed to. The landlord offered to reimburse that amount, but [Tenant 1]’s mother refused. The landlord then repaid that amount to the bond centre.
- At the hearing, the landlord’s representative acknowledged that it should not have attempted to resolve the dispute between the tenants. In doing so, she has made calculation errors and the dispute has escalated. I accept her explanation that she was trying to be helpful and to make the process easy for everyone involved. There was no intention to mislead or deceive, it was a well- intentioned mistake.
- If the landlord had submitted a bond form consistent with the amount agreed to by [Tenant 1], that should have been the end of the matter as between the landlord and tenants. However, the tenants (or some of them) became suspicious of the landlord’s actions and are now challenging other deductions from the bond.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986
- There is no requirement for tenants to engage a professional cleaner at the end of a tenancy. However, professional cleaning costs may be awarded to a landlord if tenants do not leave the premises reasonably clean and tidy.
- In this instance, some of the tenants agreed to engage a cleaner recommended by the landlord. There seems to be dispute between the tenants over which of them should meet the cost of that. That dispute, and whether any commercial cleaning was required is beyond the scope of this application.
- Even after commercial cleaning, the landlord requested $154.18 for additional cleaning. [Tenant 1] agreed to that by her email of 18 December. The other tenants were silent on the issue. All now seek reimbursement from the landlord.
- None of the parties provided me with evidence of the condition of the property at the end of the tenancy. I could not assess whether the premises were reasonably clean, or whether additional commercial cleaning was required. However, the landlord agreed to refund the additional cleaning costs it has received from the bond ($154.18). I have made an order accordingly. At the hearing the tenants provided the landlord with a bank account number for payment.
Is the tenant responsible for the damage to the premises?
- 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.
- A garden shed was damage during the tenancy. The damage is more than fair wear and tear, and the tenants have not disproved or disputed liability for the damage.
- Rather, the tenants claim that the landlord knowingly and intentionally claimed more than a reasonable repair cost for the damage. The landlord’s oral evidence was that an initial assessment of the damage indicated that it could not be satisfactorily repaired. The landlord believed that a replacement would cost more than the insurance excess. The landlord provided the tenants with its online research for a replacement shed.
- The landlord received $1,000 for the shed from the bond, as set out in the email of 18 December 2023.
- A repair was completed in December 2023. The landlord’s representative understood that the repair was temporary pending replacement.
- At the start of the hearing, the landlord’s representative advised that the shed repair that was completed in December is the only work that will be done on the shed. The shed is no longer as weatherproof as it was, but it will not be replaced. The landlord said that it would reimburse the tenants the difference between the insurance excess if received ($1,000) and the actual repair cost ($803.52). That is a reimbursement of $196.48.
- The landlord provided a copy of the repair invoice at the hearing but had not provided that information to tenants previously.
- At the hearing, the tenants argued that an $800 repair was unreasonable. They assessed that a reasonable repair cost would be $250, based on their own searches of materials costs and allowing an hour labour.
- The invoice provided by the landlord is consistent with similar repair costs presented to the Tribunal.
- I award the tenants reimbursement of $196.48. Exemplary Damages Claim
- Tenants claim that the landlord has committed an unlawful act by demanding, requesting or accepting payment of an amount for damage that exceeds the tenant’s liability under s49B RTA. See s49D RTA.
- Breaching s49D RTA is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 49D and Schedule 1A Residential Tenancies Act 1986.
- The landlord did request an amount for the shed that was more than the final repair cost.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord did not intentionally breach s49D RTA. At the time payment was requested, the landlord genuinely believed that the shed should be replaced, and the cost would exceed the insurance excess.
- The landlord could and should have identified earlier that the repair was final and that it had been overpaid from the bond. However, I am not persuaded that its failure to do so was deliberate or intentional. Rather, it appears to have arisen from a lack of experience by the property manager directly dealing with the tenancy and, perhaps, and lack of oversight within the property manager’s office.
- The claim for exemplary damages is dismissed.
- As the tenants were successful, I must award reimbursement of the Tribunal application fee.
- The application was submitted by [Tenant 1]. She did not request suppression on the application form. All other tenants at the hearing asked for their details to be supressed if the application was successful. See s95A RTA. I have suppressed all tenants’ names, as publication of one may allow others to be identified.