What was Tenancy Tribunal case 4892098 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $417.50 immediately, calculated as

How much money was awarded in case 4892098?

Cleaning: $402.50 awarded to landlord; Compensation: $820.00 awarded to tenant

Where can I read the official tribunal order for case 4892098?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10724029-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4892098 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $417.50 immediately, calculated as

How much money was awarded in case 4892098?

Cleaning: $402.50 awarded to landlord; Compensation: $820.00 awarded to tenant

Where can I read the official tribunal order for case 4892098?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10724029-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4892098 — Leaks

Claims and awards in Tenancy Tribunal application 4892098 — net $417.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$402.50		Carpet Cleaning
Compensation for bathroom and water leak		$820.00	Compensation for bathroom and water leak
Total award	$402.50	$820.00
Net award		$417.50
Total payable by Landlord to Tenant		$417.50

Claims and awards in Tenancy Tribunal application 4892098 — net $417.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$402.50		Carpet Cleaning
Compensation for bathroom and water leak		$820.00	Compensation for bathroom and water leak
Total award	$402.50	$820.00
Net award		$417.50
Total payable by Landlord to Tenant		$417.50

Order

[The landlord/s] must pay [The tenant/s] $417.50 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenants. The tenancy has now ended, but the claims arise from events during and at the end of the tenancy as I will set out below.
Both parties appeared at the hearing in the North Shore today. The landlord was represented by the property manager, but the landlord was also in attendance. Both the landlord and property manager were assisted by an interpreter provided by the Tribunal. Both tenants appeared.

BACKGROUND

I will address the background more fulsomely below, but in brief summary: a. The tenancy commenced in 2021. I am not certain of the exact date, on the tenant’s application they say it was 1 February 2021, and on the landlord’s application, she says it was 4 June 2021. b. The tenancy was a succession of fixed-term tenancies. The last fixed-term tenancy agreement has been provided and was for one year ending on 7 June 2024. The rent at that time was $820.00 per week. c. Over the course of the tenancy, there was an indication that the landlord was wanting to sell the premises, and the tenants knew that was the case. d. The tenancy came to an end. But as I will discuss below there is a dispute around who gave notice ending the tenancy. e. Ultimately the tenants moved out in May 2024, and not long following the landlord put the premises up for rent again.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

LANDLORDS CLAIM

The landlord seeks costs for carpet cleaning and pest treatment at the end of the tenancy.
The landlord states that the end of the tenancy there were issues with the carpet, in particular, there was dog hair and fleas present, and the carpets had an unpleasant odour. The landlord engaged a carpet cleaning company and seeks the costs for that from the tenants.
The landlord states that there was an agreement with the tenants that they would get the carpets commercially cleaned.
For those reasons, the landlord seeks costs of $609.50 for the carpet cleaning costs.
In response, the tenants say that the premises were left in an immaculate condition. It is disputed that there were fleas on their dog.
The tenants say that they had the carpet commercially cleaned, and that the property manager attended the property after they had the carpet cleaned, noting that he was asked not to step on the damp carpets. The tenants produced evidence showing this work being the charge from 21 April 2024. Analysis
The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided/returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
In this case I accept that the tenants had the carpets commercially cleaned, which provides an indication that the carpet should be reasonably clean, but it is not determinative. I have also considered the evidence provided by the landlord, particularly the photographs, and I am satisfied that those show that there was likely dog hair present when the carpets were returned at the end of the tenancy. In my assessment, despite the commercial cleaning from the tenants, I find the carpets were not in a reasonable state of cleanliness, meaning that it would have been reasonable for the landlord to then proceed with additional cleaning as the landlord has done. I find the tenants are therefore liable for the costs of $402.50 (inc GST) for the carpet cleaning.
However I am not persuaded that the landlord has proven that pest control was also necessary on top of the carpet cleaning, therefore the pest control invoice claim is dismissed.

TENANTS CLAIMS

Mouldy property

The tenant states that during the tenancy the tenants raised issues with the tenancy around mould. The tenants stated there was mould in the fourth bedroom which was one of their child’s bedrooms, noting that the child had issues with illness.
The tenants stated that under the house there was no ground moisture barrier for some of the tenancy, but this was installed in August 2023.
The tenants state that there were issues with rodents what were raised with the landlord.
During the tenancy there was an internal wall that had been opened. Further there was extensive mould in a bathroom that needed to be gutted, because of a leak with the shower.
The landlord states that the photograph showing mouse faeces was from 2022. It was submitted that if there were issues that the landlord could deal with that needed to be raised with the landlord at the start of the tenancy, otherwise the tenants needed to ensure the premises were kept clean to ensure there were no pests in the premises.
The property manager said that when the tenancy started the landlord did not understand her HHS responsibilities and that once the property manager took over, he then arranged for the HHS inspection.
The landlord agrees there were leaks with the shower that required extensive work to repair. The landlord states that the landlord worked with the tenants in order to agree on when this work would be undertaken.
The landlord agreed that the work to repair the bathrooms was extensive, and that the bathrooms could not be used at the time. Both parties agreed that the bathroom would be out of use for about 3-4 while the work was being completed, and no compensation was provided for that.
In conclusion the tenants state that they do not disagree that mould is something found in all dwellings, but consider this is not the situation with this claim. Analysis
It is not certain what day the tenancy started, but it was either February or June 2021. That is relevant because this is a claim including a breach of the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Compliance dates for the HHS vary depending on the tenancy, but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
Based on the information available, it seems that most likely the situation is that the fixed term tenancy was extended, that is the dates for another fixed term pushed out. I am not persuaded that the evidence supports that the fixed term tenancy was renewed in a legal sense. That means that the landlord only needed to comply with the HHS by 1 July 2025, or to put that another way, the landlord did not need to meet the HHS during this tenancy, so there could be no HHS breach.
While the HHS would not apply, that does not mean there are no obligations on the landlord, they certainly are. The landlord is required to properly maintain the tenancy.
The evidence is that during the tenancy there was a water leak from the shower, and it is plain that the landlord did address that. However the result for the tenants was that they could not use a bathroom while at work was being undertaken, and there was also a section of wallboard that had been removed. In any event, I have no difficulty in finding that the tenants should be compensated for this.
While the bathroom was out of use, the premises that the tenants were renting did not provide the same amenity that they were paying rent to receive. To that extent, it would be reasonable that the landlord provide compensation to address the situation where the tenants were paying rent for premises that they could not fully use. There will also have been an inconvenience arising from that work while the tenants were living in there.
The difficulty in these types of claims however, is working out what a reasonable level of compensation would be. I have determined on balance, that it would be reasonable to reimburse the tenants one week of rental. While the work on the bathroom took much longer than one week, the tenants would nevertheless have had the use of the remainder of the house, and it would be reasonable for rent to be paid for for that. I therefore order compensation to be paid to the tenants to the sum of $820.00.
I am not however persuaded that there is sufficient evidence of a breach of the landlord’s obligations in relation to the other concerns raised by the tenants, around mould and pests. In particular the tenants have not identified some breach of building-related obligations that would have caused other areas of mould in the property, or that the rodents arose from some breach on the landlord’s part. During the tenancy, the tenants are required to keep the premises clean and tidy and that could extend to addressing any rodent issues. Termination of tenancy
The tenants state that during the tenancy the tenants engaged with the landlord about if and when the premises were to be sold. This was of significant issue for the tenants because of schooling and zoning issues. The tenants were open to increasing rent so that they did not have to move. The tenants state an agreement was reached to consider extensions of the fixed term tenancy, but that did not eventuate.
The landlord gave notice to end the tenancy on 7 June 2024 because the premises were to be sold, but ultimately an alternate property was found and they moved out in May.
The tenants state that because the tenancy came to an end before they were expecting it, they incurred costs for moving, and also disruption to their family including needing to obtain counselling costs.
The tenants state that shortly after they moved out, the tenancy went back on the market on trademe. The rent was increased to $890 for the new tenants.
In response, the landlord says that if the tenancy was in poor condition (mould and rats) then why would the tenants want to stay there?
The landlord’s position is that the landlord had always intended to sell the house. The landlord states that the landlord did not issue a termination notice, but it was the tenant who requested to terminate the tenancy early. The landlord states that it was the tenants who wanted to terminate the tenancy early because of a family member’s health. Mr Zhu emphasised that the landlord did not issue a 90 day termination notice, but was always intending to do work and to sell the house.
The tenants referred to the text message from 22 March 2024 stating that this was the termination notice. The tenants dispute that they would have agreed to terminate the tenancy unless the notice was given by the landlord first. Analysis
In short, the tenants claim that the landlord breached her obligations in relation to terminating the tenancy, in particular, that the termination was unlawful, and in effect the termination in order to sell the premises was a sham, as demonstrated by the premises going back on the market for rental.
The landlord’s defence to this claim is that the landlord did not terminate the tenancy, it was the tenants who gave notice to end the tenancy, so there is no arguable landlord breach here.
I begin by noting the law around terminations of tenancies. Section 50 of the RTA limits the circumstances around which tenancies can be terminated. But one of the grounds that a periodic tenancy could be terminated is when: the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition; or
That is found in section 51(2)(a). Because this tenancy was nearing the end of the fixed term tenancy, then the landlord could have given 90 days notice under section 51(2)(a), which would mean that the tenancy would have ended following the last day of the fixed term period.
However, in this case there is a significant dispute between the parties as to what actually happened. The tenant’s position is that the landlord gave a notice to end the tenancy because the premises were going on the market, whereas is the landlord denies that is the situation, stating that it was the tenants who gave the notice to end the tenancy.
I have reviewed the documentation provided, and summarise the situation as I understand it to be, as follows: a. It seems to have been known over the course of the tenancy that the landlord had considered selling the premises. b. On 17 February 2024, the tenants emailed the property manager, noting that: ...we are approaching March and we have not had a solid indication as to whether the house is going to be sold or if there is an option to extend our lease for another year ... Regarding the lease agreement, we would appreciate some transparency regarding the extended rental versus sale as I need to plan [a trip to South Africa] around May / June. This is the same time as a potential house move if the lease isn’t renewed. c. On 19 February 2024 the property manager responded: As you know, landlord planned to sell their house before, but the house market is not good at the moment, so landlord also need to recheck with her agent when renovation period about selling. Regarding your special situation, landlord confirmed me once our current Tenancy Agreement Expire, then vacant house and renovate whole house, and landlord also confirmed me possible to terminate Tenancy Agreement before expire date if your special situation need, make both tenant and landlord easier. Please let me know your mind, I will arrange our moving-out date follow your schedule, also let landlord arrange for starting house renovation. d. The tenants responded that same day to advise they would start looking at properties to rent. e. On 18 March 2023 the tenants emailed the property manager to assist with finding a new tenancy “before we are quired to move out in June”. The tenants asked if the landlords had a “strict June deadline for the lease”. f. On 22 March 2024 the property manager sent the tenants a text message advising that a handyman had been arranged to do work at the premises: job start from June or earlier once you move out...Please let me know if move earlier, because handyman as knowing your moving out date will be 07/06/2024. g. On 19 April 2024 the tenants emailed the landlord stating they had found another tenancy to start on 4 May 2024.
When I consider the documentary evidence, my conclusion is that the landlord had indicated to the tenants that following the expiry of the fixed term tenancy that she intended to undertake renovations of the premises. The landlord has provided quotations supporting that. But there is no evidence that the landlord actually gave the tenants a termination notice that would comply with the RTA. In that regard, section 51(3) sets out the requirements for a termination notice. That requires the notice: a. To be in writing. b. To identify the premises to which it relates. c. Specify the date on which the tenant is to vacate the premises. d. Set out the reasons for the termination. e. Be signed.
In terms of the email communications some but not all of those criteria would be met.
I am left with the impression that the landlord was intending to end the tenancy at the end of the fixed term period, but the landlord’s actions fell short of giving formal notice. The tenants took the communications as being notice, and elected to find a new tenancy which they did, and then the tenants gave notice. So strictly the tenancy was formally terminated by the tenants.
The tenants also referred to an email from the landlord of 3 April 2023 in which the landlord had advised she was not intending to sell the house for 3-4 years, and if she decided to sell, she would give the tenants 3 months notice. I cannot see any legal basis to find that email binding on the landlord in terms of not intending to sell for 3-4 years. It is plain there was still an intention to enter fixed term tenancies, and only if there was a fixed- term tenancy for 3-4 years, that this agreement could be binding on the landlord.
But in terms of 3 months notice, if the landlord did give notice to end a periodic tenancy because the house was going on the market, then the RTA requires that notice to be 90 days, in effect 3 months.
Finding as I do that the landlord has not breached any obligation found in the RTA around the termination, there is no basis for me to order the landlord to pay exemplary damages or compensation to the tenants around the termination of the tenancy.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding.
In this case both parties have applied for name suppression, and because both parties have been substantially successful in their respective applications, name suppression for both parties is granted.

Tenancy Tribunal case 4892098 — Leaks

At a glance

Tenancy Tribunal case 4892098 — Leaks

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions