Published tribunal order
Tenancy Tribunal case 4918133 — Rent arrears
Decided 2 Sept 2024 · Published 2 Sept 2024 · Application 4918133
- Rent arrears
- Property damage
Party names are redacted in the official published order.
Order
- The Bond Centre is to pay the bond of $3,400.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,450.00 [The tenant/s]: $1,950.00
- [The tenant/s] must pay [The landlord/s] $1,450.00 from the bond, calculated as shown in the table below:
Reasons
- Both parties attended the hearing.
- The tenancy ended on 7 June 2024. After the tenants had exited the premises, the landlord advised them that he was seeking reimbursement for damage the landlord says they caused during the tenancy. The parties could not come to an agreement, therefore the tenants applied to the Tribunal for an order determining to whom the bond, or any part of is it, is to be paid. If successful, the tenant also sought reimbursement of the filing fee.
- In a cross-application, the landlord applied for rent arrears and compensation for damage. The total amount sought by the landlord was $6,120.30, being one week’s rent and compensation for various damage.
How much is owed for rent?
- The tenancy ended on 7 June 2024 by agreement. Prior to the end date, and at the tenants’ request, the parties agreed the last week of rent would be paid out of the bond.
- I award one week’s rent arrears from the bond to the landlord.
Did the tenant comply with their cleaning 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 (RTA). The standard is what an average, reasonable person would consider “reasonably clean and reasonably tidy.”
- Following the tenancy ending on 7 June 2024, the landlord obtained a quote to clean the premises. A quote from Flash Cleaning dated 18 June 2024 indicates a “Builders and Renovation Cleaning” will cost $976.35. The landlord seeks that amount.
- At the hearing on 29 August 2024, the landlord confirmed he has not had the premises professionally cleaned. On 17 August 2024, the landlord moved into the property himself. The landlord says he is in the process of cleaning the property himself.
- The landlord claims when the tenants exited the premises on 7 June 2024 they did not leave it reasonably clean and tidy. Below I set out the areas which the landlord claims were left unclean, which he submits is supported by the photos taken on 8 June 2024. Below each item, I set out the tenants’ response: a. Cobwebs in the garage, and some debris on a door leading from the garage to outside. i. The tenants say the garage was not in a dissimilar state when they moved in. They noted the cobwebs would be swept away but then would return within a few days. b. Streaked shower glass doors and dirty grouting. i. The tenants say the doors had been thoroughly scrubbed but were the original glass doors and the streaking was caused by age. 1 ii. The tenants say the grouting was also cleaned. They say it is only discoloured due to its age. 2 c. Debris in kitchen cupboards either side of rangehood. i. The tenants said they never used those cupboards and suggested the dust and debris could have been caused by work done to the ceiling by the landlord’s tradesperson at the start of this year. d. Unclean wooden standalone cupboard in the bathroom. i. The tenants said the cupboard was cleaned but was painted in a distressed style which meant it looked unclean. They also said that because of the way the glass was fitted on the cupboard doors, there was bare wood which was difficult to clean. e. Shelf above fridge not wiped. i. The tenants accept they may have missed wiping that shelf. f. Yellow substance on shelf in butler’s pantry. i. The tenants also accept that may have missed this spill which was at eye-level (for the landlord).
- The tenants provided photos that they had taken on 7 June 2024 after they had removed their belongings. The photos show a generally tidy house, with clean wooden floors and carpets, a clean kitchen sink and both ovens thoroughly cleaned.
- I am satisfied the premises were left in a reasonably clean and tidy condition. Tenants are not required to leave a property in an immaculate state. The photos taken by the tenant on 7 June 2024 show a reasonably clean house, with floors clear of debris, the kitchen sink clean and both ovens clean. I do not consider the small amount of debris found in some cupboards, or the condition of the shower glass and tiles which were installed in 2006, would be below the level of cleanliness which a reasonable person would expect. I accept the tenant’s evidence that they cleaned the house. I do not consider that the tenants missing the wiping of one or two shelves material. 1 The landlord confirmed the shower glass doors were installed during a renovation in 2006. 2 The landlord stated the shower tiles were installed in 2006 but regrouted in about 2019.
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.
- Tenants are liable for the cost of repairing damage that is intentional. 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 sought compensation for various damage he alleges was caused during the tenancy. I address each item which the landlord sought compensation for below. Garage door exterior – rust particles
- The landlord submits rust-coloured particles on the exterior of the two single-car garage doors was caused by the male tenant working on his tractor. The tenant submits he did do some buffing and paint removal work on his tractor, but he did this 10 – 15m away from the garage doors. He submits the neighbour also had a vintage car which the neighbour would work on in the vicinity, and its possible the wind could have blown rust particles from the neighbour’s work onto the premises.
- The landlord has provided photos of the garage doors which show a reddish dust or residue on horizontal parts of the garage door exterior. He seeks compensation of $1,207.50 ($1,050 + GST) being the quoted cost of repainting the garage doors. The only photos taken shortly prior to the start of the tenancy which show the garage doors was taken some distance away and does not show the condition of the paint work.
- I am not satisfied the landlord has proven that the damage to the garage doors occurred during the tenancy and is more than fair wear and tear. Without evidence of the condition of the garage doors at the start of the tenancy, I am not satisfied any buffing and paint removal by this tenant caused the damage photographed. I also note that, having only provided a quote for repair, I do not have evidence of cost actually incurred by the landlord.
- I dismiss the application for compensation for damage to the garage door exterior. Dent in driveway pillar/fence
- The landlord submits some dents on the upright pillar(s) of the property’s fencing were caused by the tenant, or those they permitted on the property. The tenant says they did not notice the dents and are unsure how they were caused. The tenants noted the landlord had tradespersons attend the premises to cut or remove some trees, and suggest it is possible they caused the damage manoeuvring their equipment and/or vehicles.
- The landlord has provided photos which show a dent on one of the white timber uprights. He seeks compensation of $345.00 ($300.00 +GST) being the quoted cost of repair the dent in the pillar.
- I am not satisfied the landlord has proven that the damage to the pillar occurred during the tenancy by persons the tenant is responsible for. It is a real possibility that the damage was caused by the tradespersons employed by the landlord. I am also not satisfied the damage is more than fair wear and tear.
- I dismiss the application for compensation for damage to the pillar. Weatherboards – solar lights
- The landlord submits there is damage to the exterior weatherboards of the house where the tenants installed solar lights without the permission of the landlord. The tenants confirm they did install solar lights on the house exterior by screwing the lights onto the weatherboard, or in some places, using adhesive tape. The tenants say they would have liked the opportunity to fix the holes themselves and dispute the compensation sought by the landlord for that damage.
- The landlord seeks compensation of $517.50 ($450.00 +GST) being the quoted cost of repair from a painter to fill and repaint the weatherboards.
- There is no dispute that the damage to the weatherboards was intentionally caused by the tenants. As I noted in the hearing, the landlord is not obligated to permit the tenants to return to the property to remedy the damage once the tenancy has ended. The landlord is entitled to seek compensation to repair the damage the tenants caused.
- However, the compensation must be a fair amount. The landlord should be returned to the position they would have been in had the tenants not breached their obligations, and should not be better or worse off, but nor should the tenants be responsible for returning the fence to a “like new” condition. In calculating the compensation I will award I have taken into account the age and condition of the fence and its likely useful lifespan.
- I order the tenants pay the landlord $200.00 for compensation for damage to the exterior weatherboards. Fence – solar lights
- The landlord submits there is damage to the fence of the house where the tenants also installed solar lights without the permission of the landlord. As with the exterior weatherboards, the tenants confirm they did install solar lights on the fence. The tenants say they would have liked the opportunity to fix the holes themselves and dispute the compensation sought by the landlord for that damage.
- The landlord seeks compensation of $345.00 ($300.00 +GST) being the quoted cost of repair of the holes in the fence.
- There is no dispute that the damage to the fence was intentionally caused by the tenants. As with the weatherboards, the landlord is entitled to seek compensation to repair the damage the tenants caused, however, the landlord should only be returned to the position they would have been in had the tenants not breached their obligations and should not be better or worse off.
- I order the tenants pay the landlord $200.00 for compensation for damage to the fence caused by installing solar lights. Fence – installation of keypad/electric gate
- The landlord submits he agreed to the tenants installing an electric fence but was not aware it would involve the installation of a keypad on the pillar of the fence/gate and he did not agree to that. The tenant removed the keypad at the landlord’s request, but the landlord says it was not sufficiently remedied and the holes, which have plugs in them, require filling and painting. The tenants dispute the landlord was unaware of the keypad, as they provided him with the code for entry and he used it on occasions during the tenancy. They also say they removed the keypad (and electric gate) as requested and remedied the holes with the plugs which stop water ingress.
- The landlord has provided photos which show two white plugs (the same colour as the fence) covering the holes where the keypad was fixed to the fence post.
- I am satisfied the tenants carried out works to make good the damage to the pillar. The plugs have been installed with care and are designed to stop any water affecting the unpainted timber beneath. I also note that, having only provided a quote for repair, I do not have evidence of cost actually incurred by the landlord.
- I dismiss the application for compensation for damage to the fence post relating to the installation of the keypad. Garage – trusses, walls and architraves
- The landlord submits the tenants caused damage to the interior of the garage by installing two LED strip lights, fixing screws to the trusses of the ceiling and leaving grease and other unknown marks on the walls.
- The landlord has provided photos of the garage interior which shows the LED strip lights, and several screws sticking out of the trusses. Photos of the garage walls also show some marks on the walls. The landlord was unable to provide photos of the garage interior at the start of the tenancy. The landlord stated the LED lights had been removed and could be collected by the tenants, which the tenants confirmed they wished to do.
- The tenants accept they installed the LED lights and screws but say this was necessary to make use of the garage. The tenants say any marks on the wall were fair wear and tear considering the intended use of a garage.
- The landlord seeks compensation of $862.50 ($750.00 +GST) being the quoted cost of repainting the garage walls and $345 ($300 +GST) being the quoted cost to remove the screws and nails in the trusses and re-paint those sections.
- I am satisfied the landlord has proven that the lights and screws were affixed by the tenants during the tenancy and is more than fair wear and tear. I am not satisfied the landlord has proven that the marks on the wall were not present at the start of the tenancy, and/or, that they were more than fair wear and tear.
- The landlord is entitled to seek compensation for the cost of repairing the damage the tenants caused by affixing the lights and screws, however, the landlord should only be returned to the position they would have been in had the tenants not breached their obligations, and should not be better or worse off.
- I order the tenants pay the landlord $100.00 for compensation for damage caused by affixing the lights and screws to the trusses and walls of the garage interior. The landlord and tenants are to agree an appropriate time and place for the tenants to collect the LED strip lights which have been removed. Garage – damage to light switches
- The landlord submits the tenants damaged the cover plates on internal light switches in the garage. The tenants say they did not cause the damage, and submit any damage is likely due to the age of the fittings.
- The landlord has provided photos of two lights switches in the garage which show cracking on the cover plate. One light switch was on the ceiling of the garage. The landlord seeks compensation of $70.00 ($35.00 for each switch) being his estimated cost of purchasing new cover plates and having them installed by a registered electrician.
- I am not satisfied the landlord has proven that the damage to the light switches occurred during the tenancy and/or is more than fair wear and tear. Given the light switches were installed in 2006, I am not satisfied the damage is not simply as a result of their age. I note the cover plates both appear yellowed which is indicative of aged plastic.
- I dismiss the application for compensation for damage to the light switches. Garage – spray paint on floor
- The landlord submits the tenants caused red spray paint marks on the concrete floor of the garage. The tenants deny causing the marks and submit while they did do some paint work with red paint, they did not do it on the garage floor. They say if they did cause the damage, it was accidental and no more than fair wear and tear given the intended use of a garage and the condition it was already in.
- The landlord has provided photos which show some dark red paint on the garage floor at the end of the tenancy. The landlord did not have photos to show the condition of the garage floor at the start of the tenancy.
- The photos from the end of the tenancy show the garage floor is a concrete floor with several markings on it. I am not satisfied the landlord has proven that the damage to the garage doors occurred during the tenancy, and/or that it is more than fair wear and tear given the intended use of a garage.
- I dismiss the application for compensation for damage to the garage floor. Driveway – paint
- The landlord submits the tenants caused the black paint marking on the driveway outside the garage. The tenants say they were not aware of the marking and do not know what could have caused it. The tenants say they did not use black paint at any time during the tenancy.
- The landlord has provided photos which show a strip of black paint on the driveway at the end of the tenancy. The landlord did not have photos to show the condition of the driveway at the start of the tenancy (other than a photo which did not show close-up detail).
- I am not satisfied the landlord has proven that the damage to the driveway occurred during the tenancy and is more than fair wear and tear.
- I dismiss the application for compensation for damage to the driveway. Kitchen – shelving in butler’s pantry
- The landlord submits the tenants caused damage to the open shelving in the butler’s pantry in the kitchen. The tenants say they have no idea how the damage to the shelves was caused but dispute that it could have been caused by an electrical cable overheating against it, as the landlord suggests.
- The landlord emailed photos of the damage to the pantry to the tenants on 20 June 2024, which were included in the tenants’ application. They show the outer edge of the shelving coming away in some parts, and a divet in the facing of the shelves which is the area the landlord suspects was caused by heat damage. The landlord provided photos of the butler’s pantry taken in January 2023, just prior to the start of this tenancy, which show the pantry in good condition although they are not close enough to show the condition of the shelving. The landlord seeks a total of $885 for repair of the shelving panel and the cost of an electrician removing and re-fitting the electrical connections within that panel.
- I am not satisfied the landlord has proven that the damage to the shelving in the butler’s pantry is more than fair wear and tear given its age and intended use. The premises were renovated some 18 years ago therefore it is to be expected that a high traffic/high use area such as a butler’s pantry would have some wear, including things like the shelving finishes peeling away in places.
- I am also satisfied that the damage in the upright part of the shelf is fair wear and tear considering the age of the materials and the intended use of a butler’s pantry. Lastly, I note that, having only provided a quote for repair, I do not have evidence of any cost actually incurred by the landlord.
- I dismiss the application for compensation for damage to the shelving in the butler’s pantry. Living room – wall
- The landlord submits the tenants damaged the living room wall where a picture was hung and the hook was later removed. The tenants accept they had caused a small area of damage, which they brought to the landlord’s attention before moving out. The tenants provided evidence of a text message exchange between the parties on 5 June 2024, in which the tenants asked the landlord for the name of the paint colour. The tenants say they filled the hole, and intended to paint it, but the landlord never advised the colour. The text exchange ended with the landlord saying he would check the paint colour and come back to the tenants. It was accepted he did not reply with the name of the paint colour before the tenants moved out on 7 June 2024.
- Photos show a small area of the living room wall, about the size of a thumb, that had been patched but not re-painted. The tenants had offered to return to the property after the tenancy had ended to remedy the patch, but the landlord declined, citing that the tenancy had come to an end.
- A tenant’s liability to compensate a landlord may, if the landlord and tenant agree, be satisfied by the tenant carrying out works to make good the damage. See sections 49B(5) RTA. I am satisfied that the text exchange in which the landlord advised the tenant that he would come back to the tenants with the paint colour was indicative of his acceptance that the tenant would make good the damage. The tenants continued to offer to remedy the living room wall after the end of the tenancy, but the landlord declined that offer. That was the landlord’s right, but in doing so, the landlord prevented the tenants from completing the agreed repairs to the living room wall.
- I dismiss the application for compensation for damage to the living room wall. Bedroom 2 – door handle
- The landlord submits the tenants damaged the door handle to the second bedroom. The landlord says the door handle was functional, however a circular plate that covered the screws of the door handle was missing. The tenants say they never noticed the cover was missing, and dispute that it would have fallen off during their tenancy as they would have noticed it lying on the floor. They say the room was used occasionally by their grand-daughter when she came to stay a couple of nights during the week and/or during school holidays.
- The landlord did not have photos to show the condition of the door handle prior to the tenancy. The landlord seeks compensation of $210.00 being the estimated cost of a door handle and a builder installing it.
- I am not satisfied the landlord has proven that the damage to the door handle occurred during the tenancy and/or that it is more than fair wear and tear. No evidence has been provided of the condition of the door handle prior to the tenancy, therefore I can not be satisfied the cover plate was in place prior to this tenancy. Given the age of the home and the time since the most recent renovation, I am also not satisfied the loss of the door handle cover plate is more than fair wear and tear.
- I dismiss the application for compensation for damage to the bedroom door handle. Re-imbursement of filing fee
- The tenants sought re-imbursement of the filing fee if successful in their application. Where a party is wholly or partly successful in his or her claim the Tribunal may order the other party to pay the filing fee.
- Given my findings, in which both parties have been partly successful, I dismiss the tenants’ claim for reimbursement of the filing fee.