How much money was awarded in case 5070148?

Cleaning: $724.50 awarded to landlord; Compensation: $690.00 awarded to landlord; Compensation: Breach of quiet enjoym…: $966.00 awarded to tenant; Compensation: Failure To Maintain: $200.00 awarded to tenant; Rent Arrears: $1,084.29 awarded to landlord

What type of tenancy dispute was case 5070148?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5070148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11151110-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 5070148?

Cleaning: $724.50 awarded to landlord; Compensation: $690.00 awarded to landlord; Compensation: Breach of quiet enjoym…: $966.00 awarded to tenant; Compensation: Failure To Maintain: $200.00 awarded to tenant; Rent Arrears: $1,084.29 awarded to landlord

What type of tenancy dispute was case 5070148?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5070148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11151110-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5070148 — Rent arrears

Q: What was Tenancy Tribunal case 5070148 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 5070148 — net $1,332.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,084.29		Rent arrears
Fixed term compensation	$690.00		Fixed term compensation
Carpet Cleaning: and curtain cleaning	$724.50		Carpet Cleaning: and curtain cleaning
Compensation: Failure to maintain		$200.00	Failure to maintain
Compensation: Breach of quiet enjoyment		$966.00	Breach of quiet enjoyment
Total award	$2,498.79	$1,166.00
Net award	$1,332.79
Bond	$2,760.00
Total payable by Tenant to Landlord	$1,332.79

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord names and identifying details.

[The tenant/s] to pay [The landlord/s] $1,332.79 from the bond, calculated as shown in table below.

The Bond Centre is to pay the bond of $2,760.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,332.79 [The tenant/s]: $1,427.21

The term of the fixed-term tenancy of [The tenant/s] at [Tenancy address suppressed] is reduced and now ends at 11.59 am on Monday 2 December 2024.

Reasons

Both parties attended the hearing on 29 November 2024.

The tenant has applied for compensation for the landlord’s failure to provide a fence, failure to maintain, breach of quiet enjoyment, exemplary damages when available, release of her bond and reimbursement of the filing fee. During the course of the hearing I accepted an oral application by the tenant to end the fixed term tenancy early. The tenant withdrew the claim for unlawful entry.

The landlord has applied for rent arrears, break lease fees, compensation for cleaning curtains and carpets, mowing lawns, release of the bond and reimbursement of the filing fee. At the commencement of the hearing, the landlord withdrew an application for termination of the tenancy for abandonment.

The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).

As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not. Similarly, the landlord must establish that what they are claiming is more likely than not.

The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).

The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.

In this case, both parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.

Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner. The parties expressed strong feelings of disappointment and stress with how things evolved prior to and during the course of the tenancy. Tenant claims Reduction of fixed term tenancy

The tenant has applied for reduction of the fixed-term tenancy due to end on 17 August 2025.

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.

There has been an unforeseen change in the tenant's circumstances. The tenant made it clear to the landlord on a number of occasions, both in the negotiations leading up to the tenancy and during the tenancy, that she required the landlord to fence off part of the property. The tenant had a dog and she was concerned about its welfare both from the perspective of her responsibility to keep the dog controlled within the premises and to prevent other dogs roaming onto the premises. The tenant works away from home, often having to travel some distance. This requires the tenant to leave the dog at home from time to time as she is unable to take the dog to her place of work. The premises are in a new subdivision and the tenant felt that without a fence she would be living in a “fish bowl” with limited privacy.

The evidence of the relationship between the parties shows that communication was often vague and uncertain. I am satisfied that there was an agreement between the parties to have a fence built. No specific date was agreed upon. In those circumstances, I must consider what might have been a reasonable time for the landlord to have a fence constructed.

The tenancy commenced on 13 August 2024. The most recent time frame provided by the landlord for construction of the fence is January 2025. Taking into account the time needed to obtain a contractor and to have the work done, I consider that a reasonable period would be 2 months from the commencement of the tenancy.

The failure by the landlord to construct a fence within a reasonable time is an unforeseen change in the tenant’s circumstances. Having made that finding, I must now consider if the extreme hardship which the tenant will suffer if I do not reduce the fixed term tenancy, is greater than the hardship that the landlord will suffer if I do reduce the fixed term.

The tenant would suffer severe hardship if the term of the tenancy were not reduced. Her ability to earn an income is reduced. This in turn makes the rent unaffordable. Her privacy and enjoyment of the premises is substantially reduced.

The landlord would suffer hardship if the term were reduced. The hardship to the landlord is a financial one. The rent from the premises is used by the landlord to meet mortgage commitments.

Having balanced the respective degrees of hardship, I find that the tenant’s hardship would be greater than the landlord’s hardship. The tenancy is to end at

45 am on Monday 2 December 2024 .The tenant indicated that they have already left the premises.

Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.

The landlord is entitled to its outstanding rent and that will be dealt with separately. Similarly, the landlord invites the Tribunal to order break lease fees and that will be dealt with elsewhere in this order.

I consider that the landlord is entitled by way of compensation to the equivalent of one weeks rent $690.00 and the tenant is ordered to pay that sum in compensation. [The tenant/s]

The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.

The tenant says that a curtain and toilet roll holder did not operate correctly.

The owner had installed curtains in the premises. The tenant says and the landlord accepts, that the curtain rings were too small for the curtain rails making drawing the curtains very difficult. A toilet roll holder was installed in the bathroom the holder came off the wall during normal use as it had not been affixed correctly. The tenant advised the landlord of these issues. Where that occurs, the landlord is entitled to a reasonable time to complete the repairs. The owner provided a letter to the Tribunal setting out a very sad range of personal events that have taken place over recent times and saying that they had simply forgotten to attend to the problems. I accept that this is an absolutely genuine error on the owners behalf. But the operation of a residential tenancy is a business where systems need to be in place to avoid repairs and maintenance being forgotten and assistance requested from other parties where personal circumstances interfere with the normal management of the tenancy.

The landlord has failed to comply with its obligations and I find they have committed an unlawful act.

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. See section 109(3) Residential Tenancies Act 1986.As indicated above, I accept that the landlord simply overlooked the need for repairs. The need for that to be intentional if exemplary damages are to be awarded is not present. I do not think that the landlord turned their mind to the need for repairs and simply decided not to carry them out. The lack of operational curtains was no doubt an inconvenience to the tenant, the toilet roll holder less so. While I am not prepared to award exemplary damages, I consider that a small order for loss of amenity in the use of the premises is appropriate. The landlord is ordered to pay compensation of $200.00.

The tenant says that the exterior stairs and retaining wall do not comply with the building standards. In support of this, the tenant supplied photos of the stairs and retaining wall and a letter from BSB Building. The letter records that the retaining wall required a hand rail if it were to comply with New Zealand standards and that the exterior stairs being temporary should have been removed.

The tenants said that some very minor injuries had occurred from falls.

The landlord provided a copy of the code compliance certificate from the premises showing that they comply. The landlord also said that searches for BSB Building did not show that they were master builders, nor that the business was a registered company. I do not consider either of those factors to be necessarily determinative.

The landlord has breached their obligation to provide premises that comply with building standards. The landlord has committed an unlawful act. I do not consider that this has been intentional. The appropriate code compliance certificate had been obtained. As the landlord has not intentionally breached their obligations, exemplary damages may not be awarded. I have considered whether the retaining wall being 100mm too high and the stairs amount to a loss of amenity. Neither is in my view of substantial moment. No order for compensation is made. Breach of Quiet Enjoyment.

A tenant is entitled to the quiet enjoyment of the premises without interruption by the landlord or their agents and contractors. Enjoyment means the full use of the premises and deriving pleasure from it.

I have no difficulty in finding that the lack of a fence has resulted in a breach of the tenant’s quiet enjoyment. Where the breach amounts to harassment, exemplary damages can be awarded. When the Tribunal considers the issue of harassment, the cases show that there needs to evidence of a pattern of behaviour intended to trouble, worry or exhaust the tenant. Harassment is a pattern or series of events. The evidence does not disclose any pattern of that nature and the application for exemplary damages is dismissed.

I do however consider that the lack of fencing has resulted in a loss of amenity to the tenant as described previously in this order. The lack of a fence has reduced the “value” of the tenancy to the tenant. I have found that a period of two months from the commencement of the tenancy would have been reasonable for the landlord to complete construction of the fence. The period from 13 October 2024 until 2 December 2024 when the tenancy ends is a period of just over 7 weeks . The landlord is ordered to pay a sum equivalent to 20% of the rent for that period for loss of amenity to the tenant. This loss recognises amenity for that period and including income. The landlord is to pay $966.00 to the tenant. Landlord claims Rent Arrears

The Tribunal has ended the tenancy on 2 December 2024. The landlord provided rent records which prove the amount owing on 29 November 2024 is $1,084.29. The amount owing at the end of the tenancy is $1,281.43.The tenant is ordered to pay that sum to the landlord. Break Lease fees.

The landlord seeks substantial amounts for break lease fees.

Section 44A RTA provides that where a landlord consents to an assignment, to a subletting or parting with possession under s.44 RTA or to the termination of the tenancy in accordance with s 50(1)(d) RTA ( which relates to the surrender of a tenancy by a tenant with the landlord’s written consent), the landlord is entitled to recover expenses from the outgoing tenant in respect of that assignment, subletting, parting with possession or termination.

The parties confirmed on many occasions during the hearing that the tenancy had not ended as of the date of the hearing. I have made rent arrears awards in favour of the landlord on that basis. The Tribunal has ended the tenancy under s.66 RTA. That is not one of the grounds set out in s.44A RTA which might allow the Tribunal to award break lease fees. The application is dismissed. Curtains / Carpet.

Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) RTA).

In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.

The RTA 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; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.

The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).

Contractual provisions that require a tenant to have the premises professionally cleaned at the end of the tenancy are generally unenforceable (s 11 RTA). Commercial carpet cleaning will only be only required where this is necessary to return the carpet to a reasonably condition.

The Tribunal has ordered the termination of the tenancy. The tenant has already left the premises. I consider it appropriate in those circumstances to consider the claim relating to the carpets and curtains. The premises were new when the tenant commenced her tenancy. She was the first tenant. The tenancy agreement required the carpets and curtains to be commercially cleaned where a pet had been allowed. Whilst normally a “standard clause” requiring commercial cleaning at the end of a tenancy will not be enforceable against a tenant, in these circumstances, I consider that commercial cleaning was required to bring them back to reasonably clean and tidy condition, particularly where they were new at the commencement of the tenancy. Invoices for $494.50 for carpet and $230.00 for curtains were provided.

The tenants said that she had used a rug doctor to clean the carpets before leaving.

I prefer the evidence of the landlord that despite the efforts by the tenant, the curtains and carpets required commercial cleaning and the tenant is ordered to pay a total of $724.50 for cleaning costs.

The landlord applied for what can best be described as “future” lawn mowing costs. No evidence of the condition of the lawns at the end of the tenancy was provided. They have apparently just been cut. No order is made for “future” cuts.

Both parties have been successful to a substantial degree in this hearing. Both parties have applied for name suppression. Where the parties have been substantially successful, the Tribunal may order name suppression. The names and details of both parties are suppressed.

I make no order regarding the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5070148 — net $1,332.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,084.29		Rent arrears
Fixed term compensation	$690.00		Fixed term compensation
Carpet Cleaning: and curtain cleaning	$724.50		Carpet Cleaning: and curtain cleaning
Compensation: Failure to maintain		$200.00	Failure to maintain
Compensation: Breach of quiet enjoyment		$966.00	Breach of quiet enjoyment
Total award	$2,498.79	$1,166.00
Net award	$1,332.79
Bond	$2,760.00
Total payable by Tenant to Landlord	$1,332.79