What was Tenancy Tribunal case 5001189 about?

The tribunal order states: 2. The landlords claim for reimbursement of filing fee, cleaning costs and

How much money was awarded in case 5001189?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5001189?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Cleanliness, Property damage, Leaks.

Where can I read the official tribunal order for case 5001189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10866846-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5001189 about?

The tribunal order states: 2. The landlords claim for reimbursement of filing fee, cleaning costs and

How much money was awarded in case 5001189?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5001189?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Cleanliness, Property damage, Leaks.

Where can I read the official tribunal order for case 5001189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10866846-Tribunal_Order_Redacted.pdf.

10 Brinlack Drive, East Tamaki, Auckland 2016 Tenancy Tribunal Case 5001189 — Mould & damp

Claims and awards in Tenancy Tribunal application 5001189. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Filing fee	$27.00		Filing fee

Order

The landlords claim for reimbursement of filing fee, cleaning costs and replacement of the carpet square are dismissed.

Reasons

Both parties attended the hearing. This is a cross application.
The landlord has applied for compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant’s application is in the nature of a defence to the landlord’s application rather than a cross claim, and I approach it on that basis.

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, 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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims that the tenants did not leave the premises reasonably clean and tidy and has provided a few photos of close-up minor areas of the kitchen that they claim were unclean. The landlord has also provided an invoice for $100 for the cost of additional cleaning.
I have viewed the photos, and I find the property was left in a reasonably clean and tidy condition.
The Tenancy Tribunal adopts a standard of “reasonably clean and tidy,” not a standard of perfection. Focusing on small areas rather than viewing the overall cleanliness of the whole property is misleading.
The landlords claim for cleaning 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. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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) 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 following damage was caused during the tenancy: -Stain on the carpet on the 3 rd bedroom.
The tenants say that they were unaware that there was a mouldy type of stain on the carpet under a desk in the bedroom. It was only when the tenants were moving the furniture that they found the stain. The tenants say that the stain is mould on the carpet from repeated water leaks in the property. In May 2024 there was a water leak that necessitated a professional dryer being used for 9 days in that area of the house.
The landlord denies that a water leak could have caused the stain and says it looks more like a chemical stain. The tenant’s young son lived in that bedroom and the tenants expressed their concerned that he had been living in a mouldy room.
The landlord stated that the owners had sent a carpet expert to the property to assess the nature of the damage. The expert lifted the carpet square and found that the underlay and flooring under the carpet was dry. The landlord says that disproves the tenants claim of water damage.
The landlord claim is a claim for replacement cost of a carpet repair in the third bedroom. The evidence is that the carpet was installed some 10 years ago.
The nature of the damage was indeterminate, the landlord claiming that it was some sort of chemical spill , and the tenants claiming that it was water damage from water leaks that have occurred during the tenancy.
The landlord’s claim is for $300.00 , the cost of replacing a small square of the carpet.
The tenant, in turn, claims that the damage is fair wear and tear, which is an exception to tenant liability: section 49A(2). Fair wear and tear have been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
As I have noted, the nature of the stain has not been determined.
Under section 49B (8)(a)(i), the onus is on the landlord to establish that the damage is not fair wear and tear. The standard of proof is the balance of probabilities, but I am not satisfied that it is met, and I dismiss the claim.
For completeness if I found in favour of the landlord, I would have taken into account 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 would have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. The carpet is over 10 years old and as so is deemed to have exceeded its likely lifespan.
For all these reasons, the landlord’s claim is dismissed.
I understand that the bond has been withheld . It is released to the tenants.
The tenants have applied for suppression of their names and details and as they have been successful, I will grant suppression.
As the tenants have successful defended their claim, I must reimburse their filing fee.
As the landlord has been unsuccessful in their claim, I am not awarding the reimbursement of their filing fee.

Claims and awards in Tenancy Tribunal application 5001189. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Filing fee	$27.00		Filing fee

Order

The landlords claim for reimbursement of filing fee, cleaning costs and replacement of the carpet square are dismissed.

Reasons

Both parties attended the hearing. This is a cross application.
The landlord has applied for compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant’s application is in the nature of a defence to the landlord’s application rather than a cross claim, and I approach it on that basis.

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, 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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims that the tenants did not leave the premises reasonably clean and tidy and has provided a few photos of close-up minor areas of the kitchen that they claim were unclean. The landlord has also provided an invoice for $100 for the cost of additional cleaning.
I have viewed the photos, and I find the property was left in a reasonably clean and tidy condition.
The Tenancy Tribunal adopts a standard of “reasonably clean and tidy,” not a standard of perfection. Focusing on small areas rather than viewing the overall cleanliness of the whole property is misleading.
The landlords claim for cleaning 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. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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) 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 following damage was caused during the tenancy: -Stain on the carpet on the 3 rd bedroom.
The tenants say that they were unaware that there was a mouldy type of stain on the carpet under a desk in the bedroom. It was only when the tenants were moving the furniture that they found the stain. The tenants say that the stain is mould on the carpet from repeated water leaks in the property. In May 2024 there was a water leak that necessitated a professional dryer being used for 9 days in that area of the house.
The landlord denies that a water leak could have caused the stain and says it looks more like a chemical stain. The tenant’s young son lived in that bedroom and the tenants expressed their concerned that he had been living in a mouldy room.
The landlord stated that the owners had sent a carpet expert to the property to assess the nature of the damage. The expert lifted the carpet square and found that the underlay and flooring under the carpet was dry. The landlord says that disproves the tenants claim of water damage.
The landlord claim is a claim for replacement cost of a carpet repair in the third bedroom. The evidence is that the carpet was installed some 10 years ago.
The nature of the damage was indeterminate, the landlord claiming that it was some sort of chemical spill , and the tenants claiming that it was water damage from water leaks that have occurred during the tenancy.
The landlord’s claim is for $300.00 , the cost of replacing a small square of the carpet.
The tenant, in turn, claims that the damage is fair wear and tear, which is an exception to tenant liability: section 49A(2). Fair wear and tear have been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
As I have noted, the nature of the stain has not been determined.
Under section 49B (8)(a)(i), the onus is on the landlord to establish that the damage is not fair wear and tear. The standard of proof is the balance of probabilities, but I am not satisfied that it is met, and I dismiss the claim.
For completeness if I found in favour of the landlord, I would have taken into account 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 would have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. The carpet is over 10 years old and as so is deemed to have exceeded its likely lifespan.
For all these reasons, the landlord’s claim is dismissed.
I understand that the bond has been withheld . It is released to the tenants.
The tenants have applied for suppression of their names and details and as they have been successful, I will grant suppression.
As the tenants have successful defended their claim, I must reimburse their filing fee.
As the landlord has been unsuccessful in their claim, I am not awarding the reimbursement of their filing fee.

Tenancy Tribunal case 5001189 — Mould & damp at 10 Brinlack Drive, East Tamaki, Auckland 2016

At a glance

Tenancy Tribunal case 5001189 — Mould & damp at 10 Brinlack Drive, East Tamaki, Auckland 2016

At a glance

Claims & awards

Dismissed claims

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions