What was Tenancy Tribunal case 4966513 about?

The tribunal order states: Atalina Fotu and Naumati Lavemai must pay [The landlord/s] $11,203.06

How much money was awarded in case 4966513?

Break Lease Fee: $1,437.50 awarded to landlord; Cleaning: $701.50 awarded to landlord; Compensation: $4,571.43 awarded to landlord; Previous Order Application 4904821 D…: $652.94 awarded to landlord; Property Damage: $550.00 awarded to landlord; Water Charges To End Of Tenancy: $661.12 awarded to landlord

What type of tenancy dispute was case 4966513?

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

Where can I read the official tribunal order for case 4966513?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11153761-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4966513 about?

The tribunal order states: Atalina Fotu and Naumati Lavemai must pay [The landlord/s] $11,203.06

How much money was awarded in case 4966513?

Break Lease Fee: $1,437.50 awarded to landlord; Cleaning: $701.50 awarded to landlord; Compensation: $4,571.43 awarded to landlord; Previous Order Application 4904821 D…: $652.94 awarded to landlord; Property Damage: $550.00 awarded to landlord; Water Charges To End Of Tenancy: $661.12 awarded to landlord

What type of tenancy dispute was case 4966513?

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

Where can I read the official tribunal order for case 4966513?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11153761-Tribunal_Order_Redacted.pdf.

18 Milano Boulevard, Karaka, Papakura 2113 Tenancy Tribunal Case 4966513 — Cleanliness

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Order

Claims and awards in Tenancy Tribunal application 4966513 — net $8,574.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4904821 dated 11/10/2024	$652.94	Previous order application 4904821 dated 11/10/2024
Water charges to end of tenancy	$661.12	Water charges to end of tenancy
Cleaning to remove pet smell	$701.50	Cleaning to remove pet smell
Repairs to garage wall	$550.00	Repairs to garage wall
Break lease fee	$1,437.50	Break lease fee
Compensation for reduction of fixed term	$4,571.43	Compensation for reduction of fixed term
Net award	$8,574.49
Total payable by Tenant to Landlord	$8,574.49

Atalina Fotu and Naumati Lavemai must pay [The landlord/s] $11,203.06 immediately, calculated as shown in the table below.

The fixed-term tenancy of Atalina Fotu and Naumati Lavemai at 18 Milano Boulevard, Karaka, Papakura 2113 is reduced and ended at midnight on 24 June 2024.

The Tribunal orders suppression of the landlords’ names.

Reasons

Both parties attended the hearing on 12 November 2024. The landlords attended by telephone from overseas. The hearing was completed on the papers.

On 9 August 2024 the tenants applied for refund of the bond, breach of the landlord’s obligations relating to smoke alarms, release from a fixed term tenancy, and exemplary damages for non-lodgement of the bond.

On 21 October 2024 the landlord applied for water charges, the break-lease fee, and the cost of garage wall repairs. At the hearing, the Tribunal was informed that there had previously been a Tribunal decision in respect of some of these, and other landlord claims (application 4904821, order dated 11 October 2024). Background

The parties signed a residential tenancy agreement for a fixed term from 4 March 2024 to 7 March 2025. The rent was $1,200.00 per week. The tenancy agreement required 3 weeks’ rent in advance and 3 weeks’ bond, a total of $7,200.00.

The landlords said they did not receive the advance rent and bond money immediately. Initially, half the move in costs were paid. There was also an issue with their property manager at the time, who allegedly failed to account to the landlords for sums received. The landlords said the move in costs had only been paid and received from their property manager by September 2024.

The tenants, who are related, had a falling out and on 21 May 2024, verbally asked to be released from the tenancy. The tenants purported to give 4 weeks’ notice of termination on 23 May 2024. The landlord started advertising for new tenants on 27 May 2024.

The tenants left the property on 24 June 2024 and stopped paying rent. The landlords say there were difficulties finding new tenants because of pet smells at the property. New tenants were found from 12 September 2024. Rent and Water

The Tribunal previously awarded rent to 11 September 2024 in the sum of $8,514.29 after application of the bond of $3,600.00. It was not suggested that this order has been the subject of an appeal or application for rehearing. The issue of rent arrears is discussed further below in the context of the tenant’s application to reduce the fixed term.

The Tribunal previously dismissed the landlord’s claim for water charges because only one invoice had been provided, which the Tribunal said did not prove “it was these tenants who owe the water rates”. The Tribunal has since been provided with further invoices.

The landlord claimed water charges of $661.12 to the date the tenants moved out. The tenants accepted owing $545.72. After reviewing the water invoices, I am satisfied that the tenants owe the sum of $661.12 to 24 June 2024. The sum of $545.72 was owed to 28 May 2024. Cleaning

The landlords claimed cleaning costs of $701.50 in addition to the carpet cleaning costs awarded by the Tribunal on 11 October 2024. The landlords said after the carpet was cleaned there was still a smell of pets and pet urine. They were advised to clean the walls and curtains which neutralised the smell.

The tenants said no one complained to them about any smell, including during viewings, and their dogs were outside. I note that the tenants had permission for one dog, but the landlord said they had several.

The exit inspection report dated 25 June 2024 referred to a “bad odour” in several rooms. There were also text messages from the property manager on 4 July 2024 (after the carpets had been cleaned) and on 1 August 2024, indicating that the smell was still there. I award the cleaning costs claimed by the landlord.

The tenants said the house was not cleaned when they moved in, and they had to remove dog faeces from the outside area. The landlords said they were unable to recover from the previous tenants and any payment to the tenants was conditional on recovery. There was no evidence corroborating the tenants’ concerns and ultimately, I find it is unclear whether the house needed cleaning at the start of the tenancy. Tenant Damage

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.

The Tribunal previously dismissed the claim for damage to the garage wall on the basis that the landlord could not establish the damage occurred during the tenancy.

The landlords performed a property inspection on 1 March 2024, and this stated: “All walls checked for damages and chipped paint”. The tenants said they did not notice any damage when they moved in, and the landlords’ father-in-law, who was looking after the premises, said it must have been the previous tenants.

There were no photographs taken at the start of the tenancy. The exit inspection report dated 25 June 2024 (by the current property manager) noted there were marks on the wall in the garage. Repairs to the wall had been performed a few days earlier, on about 22 June 2024, while the tenants were still living at the property. There is a photograph of the repair the tenants had carried out which was said to be sub-standard. It appears that the wall had been replastered, but the resulting surface was uneven.

The Tribunal has more evidence than it did in October. On the balance of probabilities, I find that the damage was caused during the tenancy. It was identified and repaired while the tenants were in occupation, which suggests it occurred during the tenancy. The landlords had inspected the premises before the tenancy and did not find any damage. The location of the damage near the light switch and alarm keypad suggests it would not have been missed during even a cursory inspection of the walls. I award $550.00 as claimed for repairs. Break Lease Costs

The landlords claimed the cost of finding replacement tenants. Section 44A of the Residential Tenancies Act 1986 (the Act) requires that the landlord provide an itemised account to the tenant before seeking to recover expenses. The Tribunal previously dismissed this claim because no itemised account had been provided. The landlords now rely on an invoice dated 26 September 2024 which has been sent to the tenants and which the landlords have paid.

The tenants previously agreed to this claim being taken from the bond and indicated their continued assent to this at the hearing. However, as detailed above, the Tribunal now understands that the bond has been applied towards the rent arrears. I am satisfied that the landlords are entitled to the recovery of $1,437.50 for reasonable expenses incurred finding new tenants between June and September 2024. Reduction of Fixed Term

The tenants sought to be released from the tenancy. Pursuant to section 66 of the Act, the Tribunal may reduce a fixed term tenancy where: • There has been an unforeseen change in the applicant’s circumstances; and • There would be severe hardship to the applicant if the term is not reduced; and • The applicant’s hardship would be greater than the hardship to the other party if the term is reduced.

The tenants explained that they are relatives and had a big falling out. One of the tenants asked the landlords to release her from the tenancy to avoid any further argument. The tenants then asked to be released early because they were sharing the rent and had no one else in their family who could take over the rent. The landlords thought it was agreed that the tenants would continue to pay rent until new tenants moved in and were aggrieved when the tenants gave notice of termination.

It has been said that a tenant leaving after a falling out is not an unforeseen change of circumstances (Buchanan v Burrow (TT Dunedin, 487/06, 20 July 2006)). It may be different when family members agree to a fixed term tenancy together. Then, there may be an expectation that, notwithstanding the usual ups and downs between people, the family relationship will endure. I consider that there has been an unforeseen change of circumstances arising from the family dispute.

Neither of the tenants are working. One of the tenants is a stay-at-home mum. She says she owes WINZ thousands of dollars. The other tenant is on a sickness benefit. The landlords said they had also suffered hardship, although did not specify what this entailed. I accept that the tenants would suffer severe hardship if the term of the tenancy is not reduced, and consider it is likely that this hardship would be greater than the landlord’s hardship.

However, where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. Section 66 of the Act: “...is not designed to allow tenants to walk away from their responsibilities without considering compensation for the landlord” (Bickerton v Lott (TT 756/00, District Court Wellington, 21 December 2000, Chief Judge Young)).

In this case, the landlord was unable to re-let the premises for nearly 3 months. The landlords said the tenants left the premises in a very poor condition, and this made the premises more difficult to re-let. The carpets were cleaned on or about 3 July 2024. There are text messages with the current property manager indicating there was a persisting smell in early August 2024. The cleaning invoice for the walls and curtains is dated 6 August 2024 (6 weeks after vacating). Apart from the smell of pets, the landlords did not detail any other reasons why the property could not be re-let before 12 September 2024 (11 weeks after vacating). The exit inspection report dated 25 June 2024 and the photographs taken by the tenants when they moved out do not reveal anything significant that would preclude early reletting after cleaning to remove any odour.

In its decision dated 11 October 2024, the Tribunal noted that the landlord’s rent summary was incorrect and calculated the rent arrears to 11 September 2024 as $8,514.29. When working out the arrears, the Tribunal treated the bond as a rent payment.

Taking account of all the circumstances discussed above, I award compensation to the landlord by directing that the tenants are liable for rent until 8 weeks after they vacated, i.e., to 19 August 2024. The total rent due under the tenancy to that date is $28,971.43. The Tribunal previously calculated that the tenants paid $24,400.00 including the bond. The compensation award to the landlords is therefore $4,571.43. This recognises that it took the landlord some time to fully clean the property for re-letting due to a persistent smell and that this interfered with the marketing. On the other hand, it is difficult to understand why it took nearly 3 months to find new tenants. The evidence available about the state of the premises at the end of the tenancy suggests they were not in need of major work before new tenants could move in. This leads me to conclude that the property could reasonably have been cleaned and re-let in 6-8 weeks.

At the hearing, the landlords pointed out that rent arrears had already been determined by the Tribunal and should not be reopened. I understand this view, but I consider section 66 of the Act enables the Tribunal to reduce a fixed term tenancy when the statutory requirements are met. This does, in effect, reduce the rent arrears previously awarded.

I have incorporated the Tribunal’s 11 October 2024 order into this determination, so far as it continues to apply, for ease of enforcement. The awards for carpet cleaning and the filing fee are incorporated. The award for rent arrears is replaced by this order. Smoke Alarms

The tenants said that there was only 1 smoke alarm at the property, which was on two levels. They provided a photograph of a smoke alarm on the upper floor and said there was nothing on the ground floor.

Section 45 of the Act requires that landlords comply with all requirements in relation to smoke alarms. The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space, and in each level of a multi-level dwelling.

The landlord’s inspection list on 1 March 2024 identified that there were smoke alarms, although it did not say how many or where they were located. The tenancy agreement does not appear to give details of any smoke alarms. The exit inspection report initially provided referred to there being 11 smoke alarms in a multitude of rooms, including all 5 bedrooms, but this does not seem plausible. A slightly different version of the exit inspection report, provided after the hearing, referred to smoke alarms missing upstairs. The landlords said the property was built in 2016 in accordance with the Building Code. They estimated there were 4-5 smoke alarms.

I am not satisfied that the premises failed to comply with the requirements for smoke alarms. Given the relative modernity of the building, it seems unlikely it would be missing smoke alarms unless they had been removed deliberately. Failure to Lodge Bond

The tenants said the landlord failed to lodge the bond with the Bond Centre within the required period.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (section 19(1) of the Act). Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest.

As summarised above, there was a complicated history relating to the payment of advanced rent and bond. The landlords said they had received the bond by late April 2024 and were about to lodge the bond when the tenants advised they were breaking the lease and would stop paying rent. The landlords said they felt they had no choice but to stop the bond lodgement and use the bond to pay the rent.

The landlords should have lodged the bond when it was received. That is the legal requirement under the Act. It was not open to the landlords to retain the bond for their own convenience. I accept however that this was an unusual case where the weekly rent was not being received and the rent in advance had not been paid. The tenants have received value for the bond, which has been applied towards the rent arrears. There is no evidence that the landlords have previously decided not to lodge a bond. I consider it would not be just to award exemplary damages against the landlords in the circumstances. Filing Fee and Suppression

Both parties have had some success. I consider it is appropriate they bear their own costs.

The landlord requested name suppression. I accept that they have been substantially successful. They succeeded on all issues apart from reduction of the tenancy. I grant suppression.

Order

Claims and awards in Tenancy Tribunal application 4966513 — net $8,574.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4904821 dated 11/10/2024	$652.94	Previous order application 4904821 dated 11/10/2024
Water charges to end of tenancy	$661.12	Water charges to end of tenancy
Cleaning to remove pet smell	$701.50	Cleaning to remove pet smell
Repairs to garage wall	$550.00	Repairs to garage wall
Break lease fee	$1,437.50	Break lease fee
Compensation for reduction of fixed term	$4,571.43	Compensation for reduction of fixed term
Net award	$8,574.49
Total payable by Tenant to Landlord	$8,574.49

Atalina Fotu and Naumati Lavemai must pay [The landlord/s] $11,203.06 immediately, calculated as shown in the table below.

The fixed-term tenancy of Atalina Fotu and Naumati Lavemai at 18 Milano Boulevard, Karaka, Papakura 2113 is reduced and ended at midnight on 24 June 2024.

The Tribunal orders suppression of the landlords’ names.

Reasons

Both parties attended the hearing on 12 November 2024. The landlords attended by telephone from overseas. The hearing was completed on the papers.

The Tribunal previously dismissed the claim for damage to the garage wall on the basis that the landlord could not establish the damage occurred during the tenancy.

The tenants said the landlord failed to lodge the bond with the Bond Centre within the required period.

Both parties have had some success. I consider it is appropriate they bear their own costs.

The landlord requested name suppression. I accept that they have been substantially successful. They succeeded on all issues apart from reduction of the tenancy. I grant suppression.

Tenancy Tribunal case 4966513 — Cleanliness at 18 Milano Boulevard, Karaka, Papakura 2113

At a glance

Tenancy Tribunal case 4966513 — Cleanliness at 18 Milano Boulevard, Karaka, Papakura 2113

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions