Published tribunal order
Tenancy Tribunal case 4953654 — Cleanliness at 10 Mutetai Road, Clarks Beach, Clarks Beach 2122
Decided 16 Aug 2024 · Published 16 Aug 2024 · Application 4953654
- Cleanliness
Party names are redacted in the official published order.
Order
- The Bond Centre is to pay the bond of $1,879.81 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $997.00 [The tenant/s]: $882.81
Reasons
- Both parties attended the hearing held on the 2 August 2024.
- This is a dispute about the reasonable costs the tenants should pay when breaking a fixed term lease.
- The tenants had a fixed term 1 year contract that was due to end on the 12 August 2024. In late January early February 2024, they asked their landlord if they could end the fixed term tenancy.
- The landlord agreed to end the fixed term contract and the parties signed an agreement which set out what they had agreed to in respect of the fixed term contract.
- This agreement included an estimate of costs and expenses for the agent’s time in completing inspections and doing the paperwork and administration of changing over the tenancies.
- The tenants were fortunate in that another of the agent’s tenants in another home, had been given notice by their landlord and the agent showed them the property and they agreed to take it. This meant that there was only a two-day period between the tenancies.
- The dispute arose because the landlord claimed amounts that the tenants say they did not agree to and are unreasonable.
- At mediation the parties agreed to certain costs ($760.19) which were to be deducted from the bond. The disputed position is the landlord’s time and travel costs for the inspection. The law.
- A tenancy agreement and any agreement to break the fixed term tenancy are contracts. Generally, the courts (Tribunals) will not interfere with the bargain made between two parties. However, the Residential Tenancies Act prohibits contracting out of the Act and a tenant is not bound by any term of a tenancy agreement that requires a tenant to do more than they would be required to under the act. (See s11(3) RTA)
- The Act says that a landlord can agree to reduce a fixed term tenancy and may recover from the tenant reasonable expenses. Usually this is the cost of finding a new tenant, conducting viewings, credit checks, advertising etc.
- When considering what is reasonable, it is important to look at the following factors: a) What were the actual costs incurred? b) What were those costs for- were they for items that the landlord would normally pay for? c) What did the parties agree to as reasonable? d) What is fair and equitable in the circumstances.
- I have considered all the evidence and submissions filed by the parties and I consider that the landlord is entitled to 9 hours’ time at $75.00 per hour and the disbursements (travel) for one inspection. I have reached this conclusion because: a) The parties agreed in the break lease agreement to the estimate of the 19 March of 9 hours of the landlord’s time including one inspection. b) Whilst the landlord had to complete two inspections, because the tenant had not completely moved out on the 17 April, inspections are usually a cost incurred/ absorbed by the landlord, and therefore I have allowed for one inspection to be completed in this time. c) The new tenants were paying an extra $20 per week in rent. This meant that the landlord benefited by $328.57 being the extra rent from the 20 April to the 12 August when this tenancy would have ended under the fixed term. d) The landlord may have spent more time than estimated on the administration tasks due to the landlord having to replace the garage door remote and remove items from the property, but the landlord did not produce any primary method of time recording (such as the notebook the landlord said she wrote all of the time down in) in evidence. I also consider that any additional time is equalled out by the additional rent received by the landlord. e) The costs awarded are in keeping with other awards made by the Tribunal. Why I have awarded the carpet cleaning cost.
- The tenants agreed in the break lease agreement to have the carpets professionally cleaned. They later negotiated with the landlord to have the carpets cleaned by their own cleaner. They did not tell the landlord that they were doing it themselves. The tenant says she is a commercial cleaner who does cleaning she says she hired the rug doctor and did it on the 17 April. The landlord disputes this. The landlord says that when she went to the property on the 17 April the male tenant was present. The female tenant did not want to there at the same time as the male tenant. The carpets were not damp or wet on either the 17 or 18 April when the landlord inspected. The landlord told me that usually the carpets are a bit damp after cleaning, especially when rug doctors are used and usually she would see evidence of the line in the carpet where the washing had taken place and would be able to smell that the carpet had been washed. She said that there was no evidence of any washing or smell from carpet cleaning. I prefer the evidence of the landlord. The tenant has given conflicting accounts of the carpet cleaning.
- Although the landlord was unable to undertake the carpet cleaning and has not done so due to the new tenant’s circumstances, I accept the landlord’s submission that she has promised the new tenants that she will undertake that cleaning. The landlord is bound by that promise, and I consider it fair to award the landlord the cost of the cleaning of the carpets which the landlord would have done between the tenancies, if the landlord had done it as agreed in the original break lease agreement.
- The carpets had to be cleaned as a condition of the tenant being given permission to keep a cat at the property. This was agreed to by the tenants at the beginning of the tenancy, and it is likely that the landlord would not have agreed to the tenants keeping the cat at the property if they had not agreed to clean the carpets on leaving.
- There has been much attention on the rights of tenants to keep pets recently. There are not many rentals where pets are allowed. I consider that when a landlord has agreed that the tenant can keep pets that it is reasonable to expect tenants to wash carpets on leaving. This is because it will remove pet hair/ dander, and the smell. Many people in New Zealand are allergic to cats and pet hair, and cleaning the carpets lessens the likelihood of allergens in the carpet.
- As the landlord has been successful in this claim, I award the landlord the filing fee and grant name suppression.
- I also grant the tenant’s name suppression. There is no public interest in knowing the tenant’s identity. This was a legitimate dispute and the tenants have been partly successful.