What was Tenancy Tribunal case 4883240 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,980.00 ([Bond number suppressed]) to

How much money was awarded in case 4883240?

Cleaning: $333.50 awarded to landlord; Compensation: $150.00 awarded to tenant; Property Damage: $281.75 awarded to landlord

What type of tenancy dispute was case 4883240?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4883240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11055860-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4883240 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,980.00 ([Bond number suppressed]) to

How much money was awarded in case 4883240?

Cleaning: $333.50 awarded to landlord; Compensation: $150.00 awarded to tenant; Property Damage: $281.75 awarded to landlord

What type of tenancy dispute was case 4883240?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4883240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11055860-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4883240 — Cleanliness

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4883240 — net $465.25 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet cleaning and flea treatment	$333.50		Carpet cleaning and flea treatment
Repairs	$281.75		Repairs
Compensation breach quiet enjoyment		$150.00	Compensation breach quiet enjoyment
Total award	$615.25	$150.00
Net award	$465.25
Total payable by Tenant to Landlord	$465.25

The tenancy commenced on 11 March 2022, initially for a fixed term ending on 12 March 2023. On that date the tenancy became periodic and ended on 19 April 2024. On 08 May 2024, the tenant filed an application, followed by a cross application filed by the landlord on 09 May 2024. On 15 May 2024, the applications were set down for hearing on 17 July 2024. The hearing was scheduled and set down for an in person hearing before me on 04 September 2024.

On 04 September 2024, the Tribunal heard evidence regarding the tenant’s claims. Some of the evidence relevant to the landlord’s claims had not been uploaded with the application or provided to the tenant. The Tribunal adjourned part heard, directing the landlord provide the tenant and the Tribunal with all the evidence they intended to rely on.

The tenant appeared. Property Managers Ms Dickson, Ms Elliottyson, and Ms Gibson appeared for the landlord.

The tenant’s claims are that: i. The landlord failed to lodge the bond within the required time frame. The tenant seeks exemplary damages. See section 19(2) and 109, and Schedule 1A of the Residential Tenancies Act 1986 (The “Act”) ii. The landlord entered the premises without consent to conduct viewings, and while doing so acted in a manner that interfered with the reasonable peace, comfort, and privacy of the tenant amounting to harassment. The tenant seeks exemplary damages. See section 48(1) and 48(4)(a), section 38(1), 38 (2), 38(3), section 109 and Schedule 1A of the Act.

The landlord’s claims are that: i. The tenant failed to leave the property in a reasonably clean condition, for which they are seeking cleaning costs of $175.00. ii. The tenant failed to have the carpet professionally cleaned and flea treated at the end of the tenancy, for which they are seeking damages of $333.50. iii. The tenant is responsible for damage occurring during the tenancy, for which the landlord is seeking compensation of $281.75.

The onus of proving these claims rests with the party making the claim. The standard required is on the balance of probabilities. In this case both must establish more likely than not that the other has breached the terms of the agreement or provisions of the Act. Failure to lodge the bond.

The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.

The landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (s 19(1) of the Act).

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,000.00 (s 19(2) and Schedule 1A of the Act).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where 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 (s 109(3) of the Act).

There is no dispute that a bond of $1,980.00 was paid by the tenant to the landlord on 09 March 2022. The tenant states that they did not receive notification that the bond had been lodged. On 10 May 2022, the tenant emailed the landlord about the bond. The landlord replied that they would look into the matter. The tenant received an email from the landlord advising they had contacted the bond centre confirming there was no record of the bond having been lodged. The tenant later received confirmation on 12 May 2022 that their bond had been lodged. This is more than 28 working days after it was paid. The landlord states they were told by the Bond Centre that over that period there had been a delay processing bond.

The landlord has a lodgement process whereby they lodge bonds received in bulk lots twice a week. The landlord produced a remittance advice sent to the Bond Centre dated 15 March 2022, which contains the names, addresses, and amount of each bond being lodged, and the bank transfer to the Bond Centre. The remittance advice shows the tenant’s bond as one of those sent to the Bond Centre for processing on 15 March 2022.

On the evidence I am not satisfied that the landlord has failed to lodge the bond within the required time period. The claim is dismissed. Unlawful entry and harassment

The tenant claims the landlord unlawfully entered the property and harassed them.

In March 2024, the tenant gave the landlord notice to end the tenancy. The landlord suggested dates and times to show the property to prospective tenants, one of which was 27 March 2024. The tenant replied that none of the proposed dates were suitable and suggested alternate dates in April. Despite no agreed dates or times, Ms Dickson arrived at the property on 27 March 2024 to conduct viewings. The tenant, who had been away, returned to find Ms Dickson and approximately 14 prospective tenants assembled outside. The parties exchanged words before the tenant went inside. Ms Dickson spoke with the tenant through the closed front door.

The tenant states Ms Dickson raised her voice and said, “this is how it ends then,” or words to that effect. The tenant states Ms Dickson asked why they could not come inside, stating she had “done so much” for the tenant, pointing to the tenant’s cat which was outside. The tenant states Ms Dickson said, “and you want me to give you a favourable report.” The tenant felt this was a veiled threat, although, it was moot since they had already received a reference and secured another property. The tenant states that Ms Dickson waited outside for about 15 minutes before they overheard her tell the prospective tenants that there had been a mistake. Later, the tenant received a letter from the landlord stating that the scheduled viewing had been cancelled, with a new proposed date in early April, which was suitable to the tenant. It appears that another tenant was found before the end of the tenancy.

The tenant states that if they had not arrived home Ms Dickson would have likely entered the property without their consent and conducted the viewing.

The tenant states they found Ms Dickson’s conduct unprofessional and had felt embarrassed in front of the neighbours and prospective tenants.

The tenant argues by coming onto the property, Ms Dickson committed an unlawful entry, and that her conduct amounted to an interference with their reasonable peace comfort and privacy, amounting to harassment.

Ms Dickson states, although there had been no agreed date, she believed the landlord enjoyed a good relationship with the tenant, and that it would be okay to conduct the viewing. Ms Dickson acknowledged that there were around a dozen prospective tenants present. Ms Dickson states she was surprised by the tenant’s reaction. Feeling frustrated, Ms Dickson accepted that “things got heated,” but denied raising her voice, mentioning the cat, or making statements about an unfavourable reference.

[ redacted] stated that she had arrived home with the tenant and witnessed Ms Dickson and others waiting outside. That they went inside and closed the door. She stated that the tenant stood behind the door, and she stood someway back but could still hear Ms Dickson, in a raised voice, mention the cat and the reference. [redacted] stated she was upset by the incident and described it as “senior abuse.” Law

A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises (s 38(2) of the Act)).

In the case of Smith v Floris, Auckland TT 1404/93, 9 March 1994 at [6], the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for breach of this type.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $2,000.00 (s 38(3) and Schedule 1A of the Act).

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).

In the case of Whatiura v Shoulder Palmerston North TT 12/87, 16 March 1987 the Tribunal considered although by definition harassment suggested repeated acts directed toward the tenant, that a single act occurring on one occasion may be sufficiently serious and amount to harassment.

Each case will be determined on the facts proven and require an objective assessment as to whether the nuisance or intrusion impacting the quality of the tenancy is over and above that which a tenant could be reasonably expected to endure in the circumstances.

Section 48(1) and (2) of the Act provides that a landlord shall not enter the premises during the tenancy unless the tenant consents, or any of the circumstances described in subsections (2) and (3). A failure to comply without reasonable excuse is an unlawful act for which exemplary damages may be awarded.

Subsection (3) (a) states with the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purposes of showing the premises to prospective tenants.

Under subsection (3A) for the purposes of subsection (3) a tenant must not withhold their consent unreasonably and may make the consent subject to reasonable conditions.

Subsection (7) states for the purposes of section 48 “premises” do not include land or facilities. Decision

Pursuant to subsection (7) a landlord who enters the land surrounding the property, in this case, the area around the tenant’s house, does not commit an unlawful entry under section 48.

An unlawful act under section 48 requires an entry into the dwelling occupied by the tenant. An attempted entry, falling short of actual entry, is insufficient, but may still interfere with the tenant’s reasonable peace comfort or privacy under section 38(2) or amount to harassment under section 38(3).

Ms Dickson’s entry onto the property and approach to the tenant’s door did not constitute an unlawful entry. As to the landlord’s conduct amounting to an interference, this is a tenant said versus landlord said situation. The statements made by Ms Dickson are disputed. What is not in dispute is that Ms Dickson went to the property knowing that a viewing had not been confirmed. When the tenant appeared, unreceptive Ms Dickson admitted feeling frustrated. I am satisfied more likely than not, that in expressing this frustration Ms Dickson raised her voice, and likely made the comments claimed by the tenant. The exchange was in front of the prospective tenants gathered outside, who were no doubt bemused. I accept the exchange resulted in embarrassment for the tenant. This went beyond a mere personality clash. I am satisfied that the incident amounted to an interference with the tenant’s reasonable peace, comfort, and privacy. I do not accept [ redacted] description of the incident as senior abuse, nor do I consider that Ms Dickson’s conduct amounted to harassment. In this case I am satisfied that the tenant has suffered a loss of amenity, namely a breach of their right to quiet enjoyment they were entitled to under the agreement. To compensate the tenant for this loss, I award damages of $150.00. Landlord’s claims – cleaning and carpet

The landlord claims that the tenant: i. Failed to leave the property in a reasonably clean condition, for which they are seeking cleaning costs of $175.00. ii. The tenant failed to have the carpet professionally cleaned and flea treated at the end of the tenancy, for which they are seeking damages of $333.50.

The property was built in 2019, and has two bedrooms, ensuite, bathroom, kitchen, dining / lounge areas, laundry, and internal garage.

On 22 April 2024, Ms Gibson conducted the end of tenancy inspection. She states that the inspection started in the kitchen and then moved into the lounge. Ms Gibson states that while in the lounge she asked if the tenant had a receipt for carpet cleaning and flea treatment, an agreed term of the agreement. Ms Gibson states the tenant said that they did not, became defensive, and then left the property, whereupon Ms Gibson completed the inspection on her own. The relationship between landlord and tenant had clearly become strained following the incident on 27 March 2024.

On 22 April 2024, following the inspection, the landlord sent an email to the tenant. We have conducted your final inspection. Unfortunately, we have noted the following items that require further attention. Cleaning -Remove the blue wheely bin from around the back of the property and contents, -Wipe out the lunge ranchslider tracks to remove excessive cat hair and dirt, -Wipe down lounge skirting board from dust and cat hair. -Wipe down cooking grease and food of the back splash and surrounding wall, -The majority of the kitchen drawers need to be wiped out, -Bottom of the main bathroom door needs to be cleaned, -Bottom draw in the main bathroom to be wiped out, -Pink soap scum on ensuite bathroom needs to be cleaned as well as the right corner bottom shelf, -Wipe down hallway cupboard shelfs, -Wipe down 1 x shelf in the master bedroom wardrobe, -Clean skirtings on master bedroom, cat hair and dirt and grime, -Bedroom 2 – wipe down walls and door to remove fly markings, scuffs, and marks also on shelves in, -Clean skirtings in bedroom 2, -Wipe down the shelf in wardrobe 2. -Wipe off black mark on the far lunge wall. Repairs -Remove 2x kitchen utensil hangers. Bog and paint over, -Fill and paint over three Chips in the laundry door frame, -There are several small dents on the back wall in the second bedroom, all in the same area. Please patch and paint, -There are 3 x marks on the wall in the master that need to be painted over, -Patch repair 2 x holes on the back of the master bedroom wardrobe, Other -Carpet throughout the house needs to be professionally cleaned and feal treated as per the tenant’s tenancy agreement.

The email went onto state that the landlord would arrange for the cleaning and repairs and would advise the tenant of the cost.

The email also went onto state, “please note, we are not required by tenancy law to give you a chance to remedy these items yourself. As your tenancy has ended, we must move quickly prepare the property for new tenants and mitigate any potential loss. Allowing you access after your tenancy has ended can also invalidate insurance.”

The landlord states that the tenant was allowed to have cats on the basis that they agree a term to have the carpets professionally cleaned and flea treated at the end of the tenancy. Adding that while there may be no visible signs of fleas, that flea eggs can remain in the carpet undetected only to emerge in the following tenancy.

The landlord has produced pre and post tenancy inspection reports, both containing photographs.

The tenant denies that they failed to leave the property reasonably clean and tidy.

The tenants submits that the photographs relied on by the landlord are close ups and not truly indicative of the actual state of cleanliness of the property.

The tenant submits that reasonably clean is not immaculate or spotless or cleaning to a hotel or motel standard.

They accept that the movers they had engaged inadvertently left the small blue bin, that it had some value, and had they been given the opportunity they would have retrieved it. No counterclaim has been made against the landlord for disposing of the tenant’s possessions contrary to the provisions of the Act.

The tenant has produced a video taken on the night they vacated, showing the interior including inside the kitchen and wardrobe cupboards.

The tenant states they thoroughly cleaned the property to the best of their ability.

The tenant denies that there is evidence of cat hair on the carpet, nor fleas, adding that both the cats were regularly treated for fleas and de wormed and that every three months they flea bombed the property. The tenant states that the cats were confined to the lounge and typically spent most of the time outside. The tenant states they cleaned the carpet themselves, using a vacuum cleaner with a wet vacuum capacity, and were confident that this had removed any flea eggs.

The tenant accepts that they initially agreed to the term to have the carpet professionally cleaned and treated for fleas but have since been advised that the term is unenforceable, as it exceeds the obligations in the Act, and that they are only liable if they have in fact failed to leave the carpet reasonably clean. Law

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) of the Act). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) of the Act).

In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said:

A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.

The Act does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.

The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).

Under section 11 of the Act contractual provisions which exceed an obligation under the Act, are unenforceable against tenants unless the Tribunal considers there are special circumstances.

Section 11 states: 11 Act to generally apply despite contrary provisions: (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) 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 inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect. Decision

Putting the subjective assessment of the parties to one side, the Tribunal must make an objective assessment based on the available evidence, the photographs produced being the most probative. While I accept that the tenant may have missed some areas, namely some sections of skirting board, I am not satisfied that overall, they have failed to leave the property reasonably clean. The cleaning undertaken by the landlord was minimal, and in my view, entirely consistent with a landlord choosing to undertake further cleaning in order to achieve a standard which they subjectively assessed as being “reasonably” clean.

A term that requires professional carpet cleaning at the end of the tenancy, over and above the tenant’s statutory obligation to leave the carpet reasonably clean is unenforceable unless there are special circumstances justifying it.

In this case, allowing the tenant to keep cats, in my view, justified a contractual term that the tenant have the carpets professionally cleaned and treated at the end of the tenancy.

The term states “... it is a condition of having pets that carpets are professionally cleaned, and flea treated at the conclusion of the tenancy.”

The tenant has breached this term. The landlord is entitled to be returned to the position they would have been in had the tenant not breached the agreement. An invoice has been produced. The amounts claimed to have the carpet “professionally” cleaned and treated for fleas is reasonable and awarded. Damage

The landlord has produced a pre tenancy report dated 07 March 2022, which includes photographs. No pre-existing damage is recorded.

The landlord claims the tenant is responsible for the following: -Screw holes left by two kitchen utensil hangers, -Three Chipps in the laundry door frame, -Several small dents on the back wall of the second bedroom, -Three marks on the wall in the master bedroom, -Two holes on the back of the master bedroom wardrobe,

The landlord is seeking compensation of $281.75. Law

To succeed with a claim for damage the landlord must prove that damage 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 Act.

Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).

Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.

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 Act.

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.

In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.

In awarding compensation for damage, the Tribunal must also consider 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 Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Damage

The tenant accepts that they installed two utensil hangers in the kitchen. The tenant states that they were alterations made for the benefit of the property, citing a lack of storage. The hangers were pointed out to the landlord during an inspection, who indicated that they would have to be removed and the screw holes repaired. Under the provisions of the Act a tenant, may with the consent of the landlord, make minor alterations. If they do, and unless otherwise agreed, the tenant is liable for restoring the property to its original condition. On that basis I find the tenant liable for the repair.

The tenant states that they installed a tie rack to the back of the wardrobe door which they then removed at the end of the tenancy leaving two screw holes. Once again, I view this as damage falling into the category of minor alterations, which the tenant is liable for remedying at the end of the tenancy.

The landlord has produced photographs showing three small paint chips in the laundry door frame, several small dents grouped together on the back wall of the second bedroom, and three small marks on the wall in the master bedroom.

The tenant has no explanation for the damage and state that they were unaware of its existence. However, concerning the chips to the door frame, the tenant states that it could be considered fair wear and tear. This damage has occurred during the tenancy. The tenancy was just over two years. In my opinion the damage is more than fair wear and tear.

The amounts claimed are less than the applicable insurance excesses. Only the damaged areas themselves appear to have been repaired. There is no deduction for betterment. The amount claimed is reasonable and awarded in full. Costs.

Both parties have been partly successful. The ordering reimbursement of one party’s filing fee will effectively cancel the other. On that basis I do not make any order for reimbursement of the filing fees. Name suppression.

The tenant seeks name suppression. The landlord does not.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that their name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

The tenant has been substantially successful in these proceedings, and I order suppression of their name and the address of the property.

Reasons

Claims and awards in Tenancy Tribunal application 4883240 — net $465.25 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet cleaning and flea treatment	$333.50		Carpet cleaning and flea treatment
Repairs	$281.75		Repairs
Compensation breach quiet enjoyment		$150.00	Compensation breach quiet enjoyment
Total award	$615.25	$150.00
Net award	$465.25
Total payable by Tenant to Landlord	$465.25