Published tribunal order
Tenancy Tribunal case 4842181 — Tenancy dispute
Decided 21 Aug 2024 · Published 21 Aug 2024 · Application 4842181
- Cleanliness
- Property damage
- Smoke alarms
Party names are redacted in the official published order.
Order
- [The tenants] to pay Alliance Property Management Nz Limited Acting Agent Mr Robert Mcallister $36.28, immediately calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,920.00 (6476949-006) to Yue Zhao and Yue Zhao immediately.
Reasons
- Both parties attended the hearing.
- The tenants applied for refund of the bond and reimbursement of the filing fee.
- The landlord made a cross application for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for water rates?
- The tenancy ended on 15 December 2023. The landlord provided water rates invoices which prove the amount owing at the end of the tenancy. The tenants did not dispute they owed the landlord $56.72 for the last water rates bill.
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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The landlord says the tenants did not leave the premises reasonably clean and tidy and did not mow the lawns.
- The tenant’s say the exit inspection photographs were taken after the tenants collected and disposed of their rubbish. The landlord has not claimed for rubbish disposal.
- The photographs in the exit inspection report show the exit inspection was undertaken around a month after the tenancy ended. Consequently, the lawns had grown in that month. In addition, the landlord did not provide an invoice to support its claim for compensation of $138.00 for lawn mowing and garden tidying. This claim is dismissed.
- The photographs in the exit inspection report show the premise was left in a reasonably clean and tidy state. The landlord argued there were fly droppings on some ceilings, dusty skirting boards, some spider’s webs and the house needed a general clean.
- Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the start of the tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant. 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. 2 Westwood v Western [1994] DCR 759.
- In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
- Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”.
- The exit inspection photographs, and report show the house was in a reasonably clean and tidy state on 10 January 2024 when this inspection was done. I also note the cleaning was done on 14 January 2024. The tenants moved out on 12 December 2023. A house and yard will need some further cleaning and tidying after being left vacant for a month.
- The landlord’s claim for compensation for cleaning costs is dismissed for lack of evidence proving its claim. The exit inspection photographs disprove liability for this cost as the premise was at standard that an average, reasonable bystander would consider “reasonably tidy”, albeit a month after the tenancy had ended.
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.
- 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.
- The landlord provided evidence that it says proves the tenants damaged the kitchen countertop and some walls, the damage caused during the tenancy and is more than fair wear and tear.
- The landlord produced quotes to have this damage repaired but confirmed it had not had any of the damage remediated. It also confirmed it has re-rented the premise, without this damage being remediated.
- The Tribunal cannot award a party compensation for costs it has not yet incurred. A landlord is required to have the damage remedied and to produce invoices and receipts to support claims for compensation.
- The landlord has failed to produce any receipts or invoices for the compensation it has applied for. Its claims for repairing the walls and kitchen countertop are dismissed for that reason. Bond
- A new agent has taken over the management of this property since the application was made. It has not had the opportunity to change the name in which the bond is held for the landlord party.
- During the hearing, the tenants agreed to pay the landlord directly for the balance of $36.28 they owe for the water rates.
- The landlord will email the tenants its bank account number and the tenants have undertaken to make payment of $36.28 immediately after receiving the landlord’s bank account details.
- In the circumstances, the parties have agreed that the full bond be repaid directly to the tenants. Reimbursement of filing fee
- Section 102(4) of the RTA provides that the Tribunal can award reimbursement of the filing fee to applicants that are wholly or substantially successful in their claims.
- The tenants have been substantially successful in their claims, and I reimburse the filing accordingly.
- The landlord has not been wholly or substantially successful in its claims. Its application for reimbursement of the filing fee is dismissed. Name Suppression
- The tenants have applied for non-publication of their names and identifying details.
- 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 (See s95A of the RTA).
- The tenants have been substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of tenants conduct or any other circumstances of the case.
- Non-publication of the tenants’ names and identifying details are ordered.