What was Tenancy Tribunal case 4933340 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,880.00 ([Bond number suppressed]) to

How much money was awarded in case 4933340?

Cleaning: $150.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $143.22 awarded to landlord; Property Damage: $1,883.29 awarded to landlord; Property Damage: $480.00 awarded to landlord; Removal Garden Waste: $816.11 awarded to landlord

What type of tenancy dispute was case 4933340?

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

Where can I read the official tribunal order for case 4933340?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11160900-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4933340 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,880.00 ([Bond number suppressed]) to

How much money was awarded in case 4933340?

Cleaning: $150.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $143.22 awarded to landlord; Property Damage: $1,883.29 awarded to landlord; Property Damage: $480.00 awarded to landlord; Removal Garden Waste: $816.11 awarded to landlord

What type of tenancy dispute was case 4933340?

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

Where can I read the official tribunal order for case 4933340?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11160900-Tribunal_Order_Redacted.pdf.

Unit/Flat B, 32 Sunnyside Road, Nawton, Hamilton 3200 Tenancy Tribunal Case 4933340 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4933340 — net $1,619.62 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$150.00	Cleaning
Replace damaged curtains	$143.22	Replace damaged curtains
Replace damaged carpet	$1,883.29	Replace damaged carpet
Removal garden waste	$816.11	Removal garden waste
Repairs to wallpaper	$480.00	Repairs to wallpaper
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,619.62
Total payable by Tenant to Landlord	$1,619.62

Property managers Ms Hall and Ms Grant appeared for the landlord. [ tenant/s] appeared and was supported by her sister.

The tenancy commenced on 31 December 2021 and ended on 22 May 2024 after the landlord gave 90 days’ notice. The notice was based on the landlord’s intention to undertake major renovations during which it would not be practicable for the tenant to remain in occupation. The tenant did not challenge the notice.

On or about January 2024, there was a change of landlord to Better Property Management Limited. Ms Grant conducted two inspections, one shortly after the change of landlord and another at the end of the tenancy.

The landlord claims: i. That the tenant failed to leave the interior of the property reasonably clean, ii. That the tenant failed to leave the grounds reasonably tidy and remove all rubbish, iii. That the tenant is liable for damage to curtains, iv. That the tenant is liable for damage to the carpet, v. That the tenant is liable for damage to the wallpaper.

The onus is on the landlord to prove these claims. The standard of proof in civil claims is on the balance of probabilities. The landlord must establish that it is more probable than not the tenant has breached the terms of the tenancy agreement or the provisions of the Residential Tenancies Act 1986 (The “Act”).

The tenant denies the claims made against them and makes a counterclaim for refund of the bond.

Did the tenant comply with their obligations at the end of the tenancy?

Cleaning

The landlord claims the tenant failed to leave the interior of the property in a reasonably clean condition and failed to remove rubbish accumulated by the tenant. The landlord is seeking cleaning costs of $500.25 and $986.47 for rubbish removal.

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 Act.

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, and not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy. Determining whether the tenant has failed to leave the property reasonably clean and tidy will involve an objective assessment. The Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.

The property has three bedrooms, kitchen / dining room, lounge, a bathroom, a separate toilet, a laundry, and a garage.

The landlord has produced pre tenancy and end of tenancy inspection reports, including photographs. The landlord has also provided closer up photographs of some areas they claim where left unclean.

The areas the landlord states the tenant failed to meet their obligations include inside of the kitchen cupboards, the bath and wall behind the taps, the lounge walls, and the heat pump filter.

The tenant denies that they have failed to leave the property in a reasonably clean condition. The tenant states that they cleaned the property themselves with the help of family. The tenant has produced their own photographs taken of the property after they had completed cleaning. The tenant states that mould behind the taps was ingrained into the silicon and could not be removed without causing damage. The substance shown on the bottom of the bath and the wall behind the taps was present at the commencement of the tenancy. The landlord has referred to photographs taken after cleaning which show that the bath and the wall behind the taps have been cleaned. The tenant argues that the professional cleaners likely had access to better cleaning products. The tenant was not shown how to remove and clean the heat pump filters. Decision on cleaning

The landlord’s photographs are clearer and closer up than the tenants which have been taken further away.

Having considered the photographs produced by both parties and their evidence, I am satisfied that despite best endeavours the tenant has overlooked some areas, namely the inside of the kitchen cabinetry and drawers, and has failed to clean adequately the bottom of the bath and behind the taps. These areas have not been left reasonably clean.

Having not been shown how to remove and clean the heat pump filters, I do not find the tenant liable for their cleaning.

There is insufficient evidence concerning the walls in the lounge.

While the tenant has missed some areas, the extent of cleaning required does not justify the full claim. To bring the property too what I consider to be a reasonably clean standard I award the landlord $150.00. Rubbish

The landlord has produced photographs showing the grounds including an area between the side of the garage and a fence. The pre tenancy photographs show that the area was initially used to store wood for the fire. The end of tenancy photographs show that the wood has been replaced with what appears to be garden waste. On top there are some fresh tree branches. The landlord states while removing the waste contractors discovered garden waste, food scraps, and other rubbish. The landlord is claiming $45 + GST for lawn mowing, $355.00 + GST for the removal of the compost waste, and disposal fees of $457.86 + GST, a total of $986.47.

The tenant states that during the tenancy their food scraps bin had gone missing, after which they put their food waste next to the garage. They did not advise the landlord and made an unsuccessful attempt to contact the Council about a replacement. The tenant denies liability for the lawn. The tenant has produced an invoice for lawn mowing which was completed about a fortnight before the end of the tenancy. The tenant states that the fresh tree branches are from a tree on the property. Although they accept liability for the compost waste, they dispute the amount claimed. They also state that a deduction should be made for the removal of the tree branches.

The landlord states in their experience tenants leave mowing the lawn until a few days before the end of the tenancy. They state the compost was about waist height and ran the length of the garage. Decision on rubbish removal

As with the interior of the property, determining whether the lawns and grounds have been left in a reasonable condition will involve an objective assessment. The lawn was not freshly mown but was not unreasonably long. I decline to award that part of the claim.

The labour cost for removing the compost and other waste is reasonable. However, I reduce the claim by $50.00 to account for the removal of the branches, as I am not satisfied the tenant is liable for this expense.

The tenant has raised questions about the disposal costs. The invoice from the contractor shows they disposed of waste on 05 June 2024, and 11 June 2024. For each visit, the contractor has recorded the disposal costs, which have been added together and GST applied.

A question has arisen whether the fees already included GST, and if so, the additional GST claim would be incorrect. The landlord was given leave to produce the original receipts. The receipts subsequently provided confirm that GST was included in the fee. It appears that GST has in fact been added twice. I award $355.00 + GST for labour and $457.86 disposal costs, less $50.00, resulting in a total of $ 816.11. Damage

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.

Section 49A (2) of the Act states that tenants are not liable for fair wear and tear.

In Taylor v Webb [1937] 2KB 283 (CA), the Court described fair wear and tear, as: That brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either intentionally or as a normal incident of a tenant’s occupation in the course of fair (or reasonable) use of the premises for any purposes for which they were let.

In Nixon v Geal–Otter, DC Northshore TT216/94, 30 January 1996, the Court stated: Mere use of the premises will by the law of inevitability produce a deterioration in condition .... [Where] a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If the tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.

Fair wear and tear can be described as damage which arises during the ordinary day to day use of the property. It is damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear of carpet or vinyl flooring occurring with everyday use.

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. Curtains

The curtains are chattels. Subject to fair wear and tear, chattels should be returned in the same condition in which they were provided.

At the commencement of the tenancy, the tenant removed the curtains and replaced them with their own. The original curtains were then stored in the linen cupboard, were they remained for almost five years. The curtains are thermal curtains. They have two layers, a thermal backing, and a front layer. At the end of the tenancy, the tenant discovered that on some curtains the thermal backing had stuck to the fronts, resulting in damage.

The landlord is claiming $286.44 to replace damaged curtains in the lounge, dining room, and one of the bedrooms.

The tenant disputes liability arguing that the damage was neither careless or intentional and is therefore fair wear and tear.

The landlord states that thermal curtains must be stored in a specific manner to avoid the thermal backing sticking to the front layer. The tenant states they have no experience of storing thermal curtains. Decision on curtains

Having heard from the parties, I am satisfied that the damage is more than fair wear and tear. Removing and storing curtains does not constitute everyday use. A reasonably prudent tenant with no prior experience of handling thermal curtains would have sought advice on how best to store them properly to avoid any damage.

Curtains in rental properties typically have an estimated useful lifespan of eight years. In this case, the curtains where approximately halfway through their estimated useful lifespan. Considering betterment, I reduce the amount claimed by 50% and award the landlord $143.22. Carpet

The carpet was near new and in good condition at the commencement of the tenancy. During the tenancy, the previous landlord discovered multiple small burns in the carpet. The agreement prohibits smoking inside.

The landlord has produced an email in which the tenant accepts liability for the damage caused by smoking. The landlord has produced photographs showing what they claim are numerous cigarette burns: ninety-eight in the lounge, seventy-one and seventy in two of the bedrooms, and approximately three hundred in the third bedroom.

The landlord has produced evidence showing a cat at the property. Keeping a cat was prohibited under the agreement. There is no cat door through which a cat can freely come and go. In addition to the burns the landlord states that the carpet and underlay had also been damaged by animal urine. Both Ms Grant and Ms Hall state the property smelt strongly of urine. The landlord has produced the invoice for the carpet in which the installer notes the underlay was damaged by urine.

The landlord made an insurance claim that was accepted. The full cost of replacing the carpet in the three bedrooms, lounge, and hallway was $4,708.82. Although the landlord is only claiming the five applicable insurance excesses ($2,500.00), plus the actual cost of replacing the underlay, they argue the damage was more than carelessness, and submit, if not directly intentional, that the tenant has at the very least turned a blind eye to the fact that damage was a virtual certainty.

The tenant accepts damage in one bedroom only. The tenant states they do not smoke but that family members had smoked inside. They deny responsibility for the other marks, stating they were not burns, and are the result of fair wear and tear.

The tenant acknowledges keeping a cat indoors. The tenant produced an invoice for carpet cleaning at the end of the tenancy. They state that after the carpet was cleaned the house remained closed. That this may have intensified any odour, which would have dissipated with ventilation.

The tenant also questions the claim pointing out that the landlord had given notice on the basis that they intended completing renovations, therefore negating the need to replace the carpet. The scope of the intended renovations has not been disclosed. Decision on carpet

I prefer the landlord’s evidence. Their photographs are clearer and more detailed than the tenant’s. The photographs show damage to the carpet in the three bedrooms and the lounge. The damage appears to be consistent with having been caused by cigarettes or hot ash. While the photographs do not support the exact number of burns claimed, it is clear that the damage is considerable.

The tenant acknowledged damage during the tenancy. The tenant was responsible for the actions of others at the property with their permission.

The tenant admitted to keeping a cat inside. There was no cat door and the cat likely toileted inside. I accept the statement made by the carpet installer which corroborates the evidence of Ms Hall and Ms Grant, that the underlay had been damaged and required replacing.

The damage caused by cigarette burns was more than fair wear and tear, and in my view, was damage virtually certain to occur. The landlord is therefore entitled to claim the full replacement cost.

Carpet in residential rental properties has an estimated useful lifespan of eight to ten years. The carpet was about five years old at the end of the tenancy. At the end of the tenancy the carpet was at least halfway through its estimated useful lifespan.

There is no photographic evidence showing damage to the carpet in the hallway. The invoice is not itemised room by room. I take as a starting point the full replacement cost, from which I deduct 10% for the hallway, and a further 50% for betterment and depreciation. The amount awarded to replace the carpet is $1,883.52. Wallpaper

The interior walls of the property are wallpapered. At the commencement of the tenancy there was no recorded damage to the walls. The landlord has produced photographs taken at the end of the tenancy showing tears to the wallpaper. There are two in one bedroom, five in another bedroom, and two in the lounge.

The tenant states that some of the tears had occurred while removing LED lights, moving furniture, or as a result of children pulling at the wallpaper. The tenant attributes the damage to fair wear and tear. Decision on wallpaper

I disagree. One or two minor nicks or dents over the course of the tenancy may be seen as fair wear and tear. The damage in this case goes beyond fair wear and tear, and in my opinion is likely the result of carelessness.

The landlord states they were able to use wallpaper left over from the previous renovations to repair the damage. The claim to repair the damage is reasonable. Since only the affected areas were repaired, no deduction is made for betterment. Costs

Because Better Property Management Limited has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression.

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 the 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.

Although the landlord has been substantially successful in these proceedings, they do not seek name suppression.

The tenant seeks name suppression.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

Although the tenant has not been successful in these proceedings, I am satisfied events experienced by the tenant following the end of the tenancy justify suppressing their name.

Reasons

Claims and awards in Tenancy Tribunal application 4933340 — net $1,619.62 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$150.00	Cleaning
Replace damaged curtains	$143.22	Replace damaged curtains
Replace damaged carpet	$1,883.29	Replace damaged carpet
Removal garden waste	$816.11	Removal garden waste
Repairs to wallpaper	$480.00	Repairs to wallpaper
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,619.62
Total payable by Tenant to Landlord	$1,619.62