Published tribunal order
Tenancy Tribunal case 4875401 — Cleanliness
Decided 24 Oct 2024 · Published 24 Oct 2024 · Application 4875401
- Cleanliness
Party names are redacted in the official published order.
Order
- The following amounts are awarded, as shown in the table below:
- The Bond Centre is to pay the bond of $3,520.00 ([Bond number suppressed]) to [The tenant/s] immediately.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing. [The tenant/s] appeared for the tenants and [The landlord’s representative], representing the landlord, attended by telephone. Background
- This tenancy began on 1 September 2022 and ended on 21 April 2024. The rent is $930.00 per week and a bond of $3,520.00 was paid. The premises was initially managed by [The former property management company] as agent for [The owner]. It was later managed by [The landlord/s] as agent for the owner.
- The tenants filed an application (number 4875401) seeking the return of their bond and compensation of $1,860.00, being the equivalent of two weeks rent. The tenants claim the premises was not clean at the start of the tenancy, the garden was not tidy, and they had to do additional cleaning and gardening. They state they left the premises in a better condition than it was at the start of the tenancy.
- The tenants also seek compensation for the landlord’s requirement that the keys be returned to the property manager’s office rather than to the premises. The tenants state they wanted to attend the landlord’s final property inspection, but this was refused. They allege the landlord is making claims and trying to recover costs from them due to a previous Tribunal hearing going against the landlord. There was also emotional stress as a result of disputes with the property manager over attendance during the property inspection. The tenants have produced photographs, documentary evidence of their communication with the landlord, and have given oral evidence at the hearing.
- The landlord filed a cross application (4877880), seeking compensation and payment from the bond following the end of the tenancy. In the application, the landlord claimed $1,003.95 for the painting of three walls, due to colours not matching (based on a quotation), and $400.00 for the tenants having removed four curtains and a curtain rail. The landlord’s evidence includes inspection reports following inspections conducted in October 2023 and February 2024, and photographs of the walls, and email correspondence.
- At the hearing, the landlord claimed $1,357.00 based on an invoice dated 19 May 2024 which listed installation of curtains, rods, and other work, including changing a toilet seat, shower fitting, and repairing a countertop in the laundry (noted to be free of charge). The landlord states the work on the walls has not yet been done, and was unsure of the insurance position. There were no photographs from the landlord regarding the condition of the premises at the start of the tenancy.
- The tenants reject the landlord’s claim for curtains and other items, noting the curtains were returned. They had paid for new toilet seats, which they took with them when moving out, and reinstated the original seats.
- At the hearing, the tenants also referred to the landlord not attending to repairs, and gave examples of delays in attending to repairs that were notified. However, as this claim was not part of their application, I am unable to consider it. The legal framework
- In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish with evidence that their claim is “more likely than not.”
- The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Tenants’ application: 4875401 Condition of the premises at the start of the tenancy
- Section 45(1)(a) of the RTA requires the landlord to provide the premises in a reasonable state of cleanliness.
- Having considered the evidence and submissions of both parties, I find that the tenants have established that the premises was not reasonably clean and tidy at the start of the tenancy. The photographs produced at the hearing show that there were areas that required further cleaning. The tenant has given oral evidence regarding their cleaning work, stating they were cleaning from 9am to 6pm. The tasks included wiping the inside of cupboards, walls, removing spider webs, cleaning the extractor fan, surface cleaning, mould removal and vacuuming of carpet. In terms of the gardening, the tenant’s evidence is that they spent three hours over three weekends (a total of 9 hours) tidying the garden.
- Therefore, the tenants are to be compensated for the additional cleaning and gardening they had to undertake at the start of the tenancy. Taking into account the tenant’s evidence of the time spent, and noting the overall condition as shown in the photographs, I consider the amount of $500.00 to be a reasonable level of compensation. This amount is awarded above. Return of the keys
- The tenant’s responsibilities are set out in section 40 of the RTA. 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) of the RTA. In reference to the return of the keys and landlord’s chattels, section 40(1)(e) states that the tenant shall, on termination of the tenancy: (iv) return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant; (v) leave in or at the premises all other chattels provided by the landlord for the use of the tenant. .
- The legislation does not specify where the keys are to be returned, or that the keys must be left at the premises. Whereas, for the landlord’s chattels, it states that the tenant shall “leave in or at the premises all other chattels provided by the landlord for the use of the tenant.”
- So, unlike the landlord’s chattels, there is no statutory requirement that the keys be left in or at the premises. In some cases, leaving the keys in the premises may be the best way to return them to the landlord, provided there is a way to secure the premises when the keys are left inside. At other times, for security reasons, some landlords may request that they be returned to the office of the landlord (where the property is managed by a professional property management company).
- In this case, the landlord’s office was not in the immediate area of the premises (located at [suburb 1]), so the landlord’s request that the keys be returned to its office in [suburb 2] was clearly inconvenient for the tenants. However, as the office was located within the [city] metropolitan area, in the circumstances, it can be regarded as reasonable, although the landlord could have taken steps to accommodate the tenant’s circumstances. Ultimately, it is the tenant’s responsibility to ensure the keys are returned to the landlord. Therefore, the claim for compensation for travel and time off work, to return the keys to the landlord’s office, is dismissed. Property inspections
- The landlord may conduct inspections of the premises, but must ensure that when doing so, proper notice is given (at least 48 hours and not more than 14 days in advance). The inspection must occur between the hours of 8am and 7pm, and the maximum frequency is once every four weeks 1 . There is no requirement that a tenant be present during the inspection, but if the tenant wishes to be there, this is usually accommodated. It is often to the advantage of both parties, so they can communicate any issues that have arisen, such as repairs or maintenance. 1 Section 48 of the RTA
- In terms of the tenants’ experience, having considered the evidence and submissions, I am unable to find any specific breaches by the landlord in this regard, although I do acknowledge that the tenants were unhappy about the landlord’s approach. Therefore, this claim is dismissed. Landlord’s application: 4877880
- As noted above, the landlord claims $1,357.00 for curtains and blinds, and other work, and compensation of $1,003.95 for repair of damage to three walls. These claims are considered below.
Did the tenants comply with their obligations at the end of the tenancy?
- As previously noted, at the end of the tenancy, the tenant’s obligation is to leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
- The landlord claims the curtains were changed without the landlord’s permission, and were not returned at the end of the tenancy. The landlord states that the owner did not get the curtains back from the tradesperson referred to in the tenant’s evidence. So, the claim is for replacement of the curtains.
- The tenants reject the landlord’s claim for curtains and other items, noting the curtains were returned and they had paid for new toilet seats, which they took with them when they moved out and they reinstated the original seats. The tenants have produced photographs, documentary evidence of their communication with the landlord, and have given oral evidence at the hearing.
- In this case, I find the landlord’s claim has not been established, with sufficient evidence, because the tenants have provided contrary evidence, which I found persuasive. This evidence challenges the landlord’s claim that the tenants did not comply with their obligation to leave the curtains (the landlord’s chattels) at the premises at the end of the tenancy.
- The tenant’s evidence is that they returned all the landlord’s curtains. I found the tenant’s oral evidence to be credible. The tenant has explained that around one week after they moved in, they asked the owner (who was managing the property at the time) about additional curtains, as not all windows had curtains. The tenants also discussed removing some of the curtains and putting up their own. The owner indicated they could hand the owner’s curtains to the tradesperson when he next attended, which they did. When they vacated, they removed their own curtains only. They deny taking any of the landlord’s curtains. They provided photographic evidence in support.
- In terms of the curtain rail, the landlord’s evidence is unclear. Therefore, having found that the tenants have complied with their obligation to leave the curtains (the landlord’s chattels) in the premises at the end of the tenancy, the landlord’s claim for compensation for the curtains and curtain rail is dismissed. I also find the other items claimed on this invoice have not been established, and were not part of the landlord’s application, so they are also dismissed. General principles regarding responsibility for damage
- The landlord claims compensation for damage to the walls. To be successful, 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 of the RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the RTA applies. 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) of the 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) of the 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) of the RTA.
- In this case the tenancy agreement indicates the insurance excess is $1,200.00. The rent for the premises is $930.00.
- 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) of the 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 determining the quantum of the landlord’s compensation, betterment and depreciation must be taken into account. The landlord should be returned to the position they would have been in had the damage not occurred, and should not be better or worse off. In calculating depreciation, the age and condition of the item at the start of the tenancy and its likely useful lifespan must be factored in. Wall damage
- The landlord claims compensation for damage to three walls. The tenant has explained that repairs were done to these walls (bedrooms and downstairs), where shelves were removed. The walls were then sanded and patched, and were painted in a paint colour that the tenant considered to be a close match.
- In this case, the evidence shows the wall damage occurred during this tenancy, and is more than fair wear and tear. The tenant has explained the measures taken to repair the damage to the walls. The photographs show the difference in colour, and I find that the landlord ought to be compensated. There is no photographic evidence of the condition of the walls at the start of the tenancy, and no evidence about when the walls were last painted. The quotation of $1,003.95 is noted, although the work has not been undertaken. Taking into account the principle of betterment, and depreciation, I consider $500.00 to be reasonable compensation to the landlord for the wall damage. This is awarded above. Filing fee
- As each party has had some measure of success, but neither party has been substantially successful, each is to bear the cost of their own filing fee. Name suppression
- Both parties seek name suppression, and each has had some success with their claims. The Tribunal, having had regard to the interests of the parties and to the public interest, orders suppression of the tenants’ and landlord’s names and identifying details.