Published tribunal order
Tenancy Tribunal case 4947256 — Cleanliness at 18 Gordon Road, Mount Maunganui, Mount Maunganui
Decided 16 Sept 2024 · Published 16 Sept 2024 · Application 4947256
Landlord favoured
- Cleanliness
- Property damage
Order
- Martin Cotterill and Sarah Cotterill must pay Sam Rush $8,890.00 immediately, calculated as shown in table below:
- The Bond Centre is to pay the bond of $5,000.00 (3385019-003) to Sam Rush immediately.
- The applications for landlord time and travel costs and for the costs of finding a new tenant, and for gardening work are dismissed.
Reasons
- The landlord attended the hearing. The tenants did not attend the hearing; however, the application was filed within 2 months of the date the tenants vacated the premises and notice of the application and hearing was served on the address for service (email) for the tenant recorded in the tenancy agreement.
- The landlord has applied for rent, compensation, refund of the bond, and reimbursement of the filing fee. Fixed term tenancy
- This was a nine month long fixed term tenancy that commenced on 31 October 2023 and was to finish on 31 August 2024 (“the rental period”).
- In May 2024, the tenants indicated to the landlord that they were having difficulty paying their rent due to a change in their respective employment situations. They suggested that they would find replacement tenants for the premises. There was a series of communications between the tenants and the landlord. The tenants advised that they had been unable to find replacement tenants and asked for the costs associated with finding new tenants for the property, which the landlord provided.
- Subsequently, and despite the landlord asking for updates on their situation, the tenants stopped corresponding, until 18 June 2024, when the tenants advised by email that they had vacated the property and had returned to the United Kingdom. The rent was not in arrears on this date. The landlord advised that he did not agree to end the fixed term tenancy early and this is supported by the correspondence.
- There was also no application made to the Tenancy Tribunal by the tenant to reduce or terminate the fixed term tenancy. See section 66 Residential Tenancies Act 1986 (RTA).
- On 19 June 2024 the landlord gave the tenants a 48 notice to inspect the property.
- On the same day, the landlord engaged a property manager to list the premises for rental. An email confirmation from the listing agency has been provided, confirming that the property was listed that same day.
- The landlord carried out an inspection of the property on the weekend of 21 June 2024.
- Despite the prompt actions and re-listing of the property, a new tenant was unable to be found during the rental period. During this time the landlord advised that he also lowered the rent to assist with finding a new tenant.
- As there was no agreement or application to end the fixed term tenancy early and the landlord took reasonable and prompt steps to find a new tenant, I have determined that it is just and fair to award rent to the end of the rental period. The landlord provided rental records which prove the amount owing at the end of the rental period of $13,393.00.
- The landlord has also claimed for the property manager fees and associated costs of $1,322.50, together with airfares, car rental and travel costs incurred by him having to return from Australia to inspect and ready for the property for new tenants. No evidence of these amounts was provided.
- These costs would likely have been incurred at the end of the rental period regardless of whether the fixed term tenancy ended early. The difference between the vacated date and the end of the rental period was just over two months, so not significantly different.
- As I have awarded full rent for the rental period and the landlord has been restored to the position of the full fixed term rental period, it is not in my view reasonable to also award costs associated with breaking the fixed term tenancy early.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(ii)-(v) RTA.
- The tenant did not leave the premises reasonably clean and tidy.
- The landlord has provided photographs of the condition of both the internal and external condition (lawns, gardens and hedges) of the property.
- The kitchen, bathroom, blinds, and windows were required to be cleaned. The landlord has provided an invoice for this cleaning of $320.00.
- No invoice has been provided for the lawns, gardens and hedges. The landlord advised that he carried this work out himself.
- The amount for internal cleaning of $320.00 is proven and ordered. The amount for lawns, gardens and hedges has not been proven and is dismissed.
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.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA 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) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA.
- The following damage was caused during the tenancy: the BBQ / BBQ plates were damaged. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The BBQ was purchased new at the start or during the tenancy, meaning it was less than nine months old. The landlord has disposed of the BBQ and has provided an online Bunnings screenshot showing the model and new purchase amount of the BBQ that was at the property. The current purchase amount is $219.00.
- The landlord has provided photographs of the damaged BBQ, matching the model of the online Bunnings screenshot and showing damage to the BBQ plates. It is not clear to me whether the BBQ could have cleaned and/or repaired.
- The BBQ was expected to be used by the tenant and was listed as a chattel in the tenancy agreement so some fair wear and tear could be expected at the end of the tenancy. I have not been provided any evidence that it was unable to be restored. Consequently, it would not be reasonable to award the cost of a new BBQ. I have instead awarded $150.00 for the damage to the BBQ.
- In calculating this, I have considered 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
- Because Sam Rush has substantially succeeded with the claim I have reimbursed the filing fee. R Harvey-Lane 16 September 2024