Published tribunal order
Tenancy Tribunal case 4849700 — Tenancy dispute at 4 Carder Court, Hobsonville, Auckland 0618
Decided 23 Sept 2024 · Published 23 Sept 2024 · Application 4849700
- Cleanliness
- Leaks
- Mould & damp
- Property damage
Party names are redacted in the official published order.
Order
- Faceup Property Management Limited acting as agent For James Yu must pay [The tenant/s] $195.44 immediately, calculated as shown in table below.
Reasons
- These claims concern the rental of a three-level home in Hobsonville. The tenancy was a period of over five years, from 15 December 2028 to 18 March 2024.
- Both parties attended the hearing. Ms Tregonning appeared on behalf of the landlord in person. The tenant, who now lives overseas, appeared by phone.
- Both parties have filed claims.
- The tenant filed a claim on 31 March 2024 seeking compensation of $350.00 being $50 rent for 7 weeks due to a leak at the property, together with an electricity invoice in the amount of $184.82. The tenant advised that the electricity invoice has now been paid and she only seeks compensation in respect of the leak.
- The landlord filed a claim on 24 April 2024 seeking compensation of $820.44 (for carpet cleaning in the amount of $420.00, painting in the amount of $380.00 and the filing fee of $20.44).
- The tenant had paid a bond of $2,600.00. The sum of $1,779.56 was released following mediation of this matter leaving the sum of $820.44 remaining, being the amount of the landlord’s claim.
- Each party must prove their claim to the civil standard (on the balance of probabilities).
- For the sake of brevity I have not referred to all of the evidence filed and referred to at the hearing but the parties should be assured that I have reviewed and carefully considered all of the evidence in reaching this decision.
Did the tenant comply with their obligations at the end of the tenancy?
- The landlord says that the tenant left the property immaculately clean and tidy but said that the tenant should be liable to pay for carpet cleaning and flea treatment.
- The landlord said that they allowed the tenant to have a cat at the property on the basis that she signed a “Pet Agreement”. The landlord produced a copy of the signed pet agreement which includes the following clause: “If an inside pet is allowed the carpets should be cleaned, pest sprayed and odour treated as necessary in order to protect the owners property”
- The landlord said that they tenant did not comply with the above clause and so they engaged a contractor themselves. They said that it was unlikely that the tenant’s cat had fleas as it did not go outside but that it was still necessary to clean the carpet for the comfort of future tenants as many people suffer from allergies.
- The landlord produced an invoice from [carpet cleaning company] in the amount of $420.00 for “commercial-grade vacuum and steam clean with shampoo, standard stain treatment, sanitise and deodorise of the carpet in three bedrooms, lounge and stairs” and “pest control treatment for fleas”.
- The tenant says that they had a well-behaved indoor cat that caused no staining or damage to the carpet whatsoever and that they had the cat regularly treated for fleas. The tenant produced copies of her cat’s vaccination and treatment book showing regular flea treatments. The tenant said further that the carpets were not cleaned at the start of the tenancy.
- Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) RTA). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy condition (ss 40(1)(c) and (e)(iii) RTA).
- Contractual provisions that require a tenant to have the premises professionally cleaned at the end of the tenancy are generally unenforceable (s 11 RTA) as they purport to modify (and increase) the tenant’s obligations under the RTA. Such provisions are of no effect unless the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the modification should be permitted.
- I do not consider that there is any basis on which the modification should be permitted. The landlord has acknowledged that the tenant left the property reasonably clean and tidy (in fact immaculately so). There is no evidence that the carpet was not reasonably clean or that there were fleas at the property. In any event, this was a tenancy of over five years and it is to be expected that the landlord would need to have the carpets professionally cleaned after a tenancy of such a long duration.
- The landlord’s claim for carpet cleaning is dismissed.
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.
- The landlord says that there were scuff marks existing in the property at the start of the tenancy which were of no concern to the landlord and that the condition was accepted by the tenant when she moved in.
- The landlord claims that the tenant has taken it upon herself when leaving the property to paint over various scuff marks but that the paint used is not a perfect match and is a semi-gloss paint and has been used on a number of areas where the paint was a matt finish.
- The landlord produced photos of the areas affected together with an invoice from [property maintenance company] in the amount of $380 for “colour match paint to touch up walls and doors throughout the whole unit”.
- The tenant said that there were scuff marks throughout the entire tenancy when they moved in and that most were on the garage walls which were in poor condition. The tenant said that they colour matched the paint.
- I have reviewed the photos and in my view it is possible to see that there is a contrast in some of the photos where the tenant has touched up the paint. These touch-ups have occurred during the tenancy, although many of the scuff marks did not.
- In considering 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. In calculating depreciation, I am required to take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- I accept that the tenant has not perfectly matched the colour or gloss of the paint but in my view the time had come for the landlord to touch up these areas as part of the overall maintenance of the property. This was a tenancy of over five years and it appears that the majority of the scuff marks existed prior to her moving in.
- The landlord’s claim for painting is dismissed. The tenant’s claim 27. . She said that when water started leaking through the light in the downstairs lounge (underneath the hallway) she contacted the owner directly who then arranged for repairs.
- The tenant said that she was very unwell and had recently had surgery and that her life was very difficult during this period as she was constantly mopping up damp carpet in the hallway and it caused her pain to do so. She says that she was given a rent reduction from the date that she contacted the owner until the date that repairs were made ($50 per week for a period of 8 weeks) but that the problem in fact existed from 4 June 2024. She says that she should be entitled to a total of 15 weeks compensation and seeks compensation for the additional 7 weeks ($50 per week, being $350.00).
- Ms Tregonning explained that when the leak first occurred it appeared to be intermittent, with the tenant contacting on them several times to say that the leak appeared to have gone away. The landlord engaged a leak detector who advised that it was likely a leak from a vent in the roof. Due to storms and heavy rain the issue was not able to be immediately investigated.
- She said that the owner would not authorise the landlord to investigate further or do repairs and that he only took action when the tenant contacted him directly. At that stage it was discovered that the toilet had not been properly installed with a silicone seal, which had allowed water to slowly seep out. The toilet was repaired on 4 September 2023. She said that the rent was reduced to compensate the tenant for the inconvenience of having wet carpet.
- Having considered all of the evidence I consider that the tenant is entitled to compensation for lack of amenity for the entire 15 weeks (and so is entitled compensation for the first 7 weeks) but because the leak was initially intermittent, I have reduced that compensation to $25.00 per week for those additional 7 weeks, and order compensation of $175.00.
- Because [the tenant] has substantially succeeded with the claim I have reimbursed the filing fee. The tenant has also applied for an order for name suppression and is entitled to an order as the substantially successful party pursuant to section 95A RTA.