What was Tenancy Tribunal case 5077048 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5077048?

The reconciled net award was $2,517.42.

What type of tenancy dispute was case 5077048?

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

Where can I read the official tribunal order for case 5077048?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11520834-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5077048 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5077048?

The reconciled net award was $2,517.42.

What type of tenancy dispute was case 5077048?

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

Where can I read the official tribunal order for case 5077048?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11520834-Tribunal_Order_Redacted.pdf.

Linwood, Christchurch Tenancy Tribunal Case 5077048 — Mould & damp

Tenantcheck Insights

Reasons

Both parties attended the hearing which was held remotely.

The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy. Specifically, he seeks cleaning costs, insurance premium reimbursement and carpet replacement costs. Background

The tenancy lasted approximately six years ending in May 2024. The bond was returned by consent to [The tenant/s] after a property manager employed by Mr Abdullah undertook a final inspection and raised no issues for remedy.

On 21 October 2024 the Tribunal issued a decision on a different matter ordering Mr Abdullah to pay [The tenant/s] compensation. Mr Abdullah applied for a rehearing but that was dismissed. As yet, Mr Abdullah has not paid the ordered compensation.

Mr Abdullah filed this application on 20 November 2024.

I discuss each of the claims separately below. However before I do, I note that the evidential burden of proving claims is on the applicant, Mr Abdullah here, and the evidential standard is the balance of probabilities. Or in other words, Mr Abdullah must prove in evidence his claims are more likely than not. Both parties can be assured that all their evidence has been carefully considered in the formulation of this decision.

Is the tenant responsible for the damage to the premises?

Mr Abdullah claims $2,517.42 in compensation being the quote he has received to recarpet two bedrooms in the home. He says [The tenant/s] pulled up the carpet in those two areas in November 2022 without his permission. His view is that the reason she did that was because they had been damaged by her dog that she had also brought into the tenancy without permission. He says the property smelt of dog although accepts he never served her with any notices to remedy that issue. He did not notice any dog damage until after she had vacated he says.

His evidence is that at the time he was recovering from surgery so could not bring any action against [The tenant/s] then, and during the previous proceedings it was too stressful to file a cross application. He hasn’t had the carpet replaced yet but intends to if successful. He hasn’t made a claim through his insurance company.

[The tenant/s] evidence is that when she moved in the carpets in the whole house were old and decrepit. Mr Abdullah recarpeted the entire house in 2018 except for these two rooms but said he had an intention to get to them in due course. She says she asked many times for them to be replaced but when they were not, she removed them herself.

She says they did talk about it at the time, and he agreed to her action because the carpet was mouldy, and removal would prevent further damage to the wood floors. She disputes that her dog did any damage to the carpets saying he is house trained, and she did not get him until 2020. The previous owner had a dog which is why the old carpet had smelt like dog.

Mr Abdullah agrees he did have an intention to recarpet these rooms but says there was no point when [The tenant/s] got a dog. He provided a photo of the carpet in one room in January 2019 which shows the carpet was in reasonable condition. He agrees the carpet in the other room was marginal. The law and discussion

To be successful in such a claim, 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 Residential Tenancies Act 1986 (RTA).

Clearly [The tenant/s] intended to remove the carpet, therefore this was an intentional act. She says however that it was necessary given the carpet’s state. This submission is supported by the following: a. The fact that Mr Abdullah had recarpeted the rest of the house only leaving these rooms as he did not have enough carpet at the time and he had an intention to come back to them. b. [The tenant/s] text at the time saying: I removed the old carpet that had been there since the old lady had lived here. It was yuck and damp, its just hard wooden floors in two rooms now.

[The tenant/s] says she had consent to take this action, Mr Abdullah says she did not. As these were verbal discussions, there is no corroborating evidence either way.

Having assessed the evidence carefully, I dismiss the claim for two reasons. Firstly, when assessing compensation betterment and depreciation must be considered. This is because even if the damage was done without consent and intentionally, a landlord is only entitled to 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 betterment and depreciation, the Tribunal will consider the age and condition of the items at the start of the tenancy and their likely useful lifespan.

This carpet had well exceeded the expected lifespan of carpet in a rental property which is 10 years. Mr Abdullah had intended on replacing it himself but had not done so. Accordingly, after applying depreciation to the claim, Mr Abdullah would not be entitled to compensation given the age and state of the original carpet. Essentially [The tenant/s] had started a job he had intended to do himself.

The second reason for my decision is the principal of estoppel. The underlying principle of equitable estoppel is to prevent the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable. This principle is entirely consistent with the jurisdiction of the Tenancy Tribunal. 1

Estoppel can be applied when one party has created a belief or expectation to the other party, which was reasonably relied on by that party and it would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation. Here Mr Abdullah took no action against [The tenant/s] when she removed the carpet, nor did he object retrospectively. The 1 Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 & 4053657), and s 85(2) RTA tenancy continued for another two years without incident and then no claim was made against the bond.

Effectively, Mr Abdullah has approved of [The tenant/s] action by his inaction. His choice to ‘let it slide’ at the time and failing to raise it in bond discussions means he is prevented from claiming for any damage now.

This claim is therefore dismissed.

Should the tenant pay compensation for cleaning?

Mr Abdullah says that the hallway had stains on the carpet and one room had black marks and scratches on the walls and marks on the carpet from [The tenant/s] dog. He says he hired a carpet cleaning machine and a painter as well as spending approximately a week cleaning the home. He claims $250 as a nominal figure towards these costs and time.

He agrees that he wrote a good reference for [The tenant/s] in April 2024 saying she and her dog have not caused any damage, and that [The tenant/s] bond was refunded by consent without deduction. This he says is because [The tenant/s] was difficult, and he prefers to avoid conflict.

Specifically the reference says: She has treated the property with respect, keeping things clean and tidy and maintaining the lawns where necessary. [The tenant/s] has been easy to communicate with regarding any necessary maintenance issues. [The tenant/s] has a dog, who has been living at the property for over five years as well. [The tenant’s dog] has not caused damage to the property or been a cause for concern. I would confidently say she should not be considered a liability for [The tenant/s] future tenancy. Overall, [The tenant/s] has been an excellent tenant, and I would recommend her as a future tenant to any property manager.

[The tenant/s] evidence is that she cleaned the house to a reasonably clean and tidy standard. The property manager raised no issues of concern otherwise she would have remedied them. She considers this claim, made some seven months after the end of the tenancy, is disingenuous and comes in retaliation to her succeeding in her previous claims before the Tribunal.

She also notes that the stains in the carpet came from water ingress that she had noted to Mr Abdullah on an earlier occasion. When it rained water appeared to be coming in under the floorboards in the hallway. His response to her at the time was to ask her to purchase a hall runner to hide the water ingress, which she did. Her submission is that these claims are fabricated. The law and discussion

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) of the RTA.

The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also a tenant, generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.

The photos of the bedroom do not establish that this standard has not been met there. The photos of the hallway do show that the carpet is marked, however, Mr Abdullah has not provided corroboratory evidence to his claim such as evidence he hired a carpet cleaner. There is disagreement over whether [The tenant/s] did raise the water ingress during the tenancy.

Having considered the claim carefully, I also dismiss it as I do not find it established in evidence that [The tenant/s] breached section 40(1)(e)(iii) by failing to leave the property reasonably clean and tidy. Mr Abdullah clearly wrote that the dog had not caused any damage, only a few weeks prior to the end of the tenancy, the property manager raised no issue and the photos were not clear.

I also consider the principal of estoppel is similarly relevant given no claim was raised at the end of the tenancy and the bond was returned to [The tenant/s] in full.

A bond is lodged with the Bond Centre to cover any claims at the end of a tenancy, such as a claim for cleaning. Mr Abdullah made none at the relevant time, which indicates he considered [The tenant/s] had met her obligations under the RTA. [The tenant/s] was entitled to rely on that assertion. Did the tenant invalidate the landlord’s insurance?

Mr Abdullah makes a claim for reimbursement of four months of insurance premiums he paid over a period he says [The tenant/s] changed the use of the premise. He says he employed an investigator who found evidence that [The tenant/s] was working as a sex worker from the home. He refers to her advertisement which states she is working from a private residence.

He says that she breached section 40(1)(b) of the RTA which directs that a tenant must ensure that the premises are occupied principally for residential purposes. He also spoke to his insurance company about the issue who said This kind of work would be outside our scope of cover, and may or may not affect cover if there was a claim to make. This would depend on the situation and the type of accidental damage that was caused.

He accepts that he did not need to make a claim during this time but says the type of business provided a risk to the house given the nature of the clientele.

[The tenant/s] says she only worked for approximately 1 hour a week in this capacity and mainly outside of the house. She again challenges the authenticity of the claim given it was not filed until November 2024 and the screenshots he provided were taken on 13 December 2023, 23 January 2024 and 1 April 2024.

The evidence does not establish that [The tenant/s] used the home primarily for work rather than her principal residence. She clearly lived there throughout, and I accept her evidence that her escorting was a very part time venture she engaged in as there is no evidence to contradict that assertion.

Further, Mr Abdullah has suffered no financial loss and compensation is only ever awarded to return a ‘victim’ of a breach to the position they would have been in had the other party not breached their obligations; they should not be better or worse off.

Accordingly, this claim is also dismissed. Filing fee

Because Zaki Abdullah was not successful with his claims, I decline to reimburse the filing fee. Suppression

Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application.

[The tenant/s] seeks suppression orders and given she was successful in defending these claims, I approve that application.

Reasons

Both parties attended the hearing which was held remotely.

Mr Abdullah filed this application on 20 November 2024.

Is the tenant responsible for the damage to the premises?

[The tenant/s] says she had consent to take this action, Mr Abdullah says she did not. As these were verbal discussions, there is no corroborating evidence either way.

This claim is therefore dismissed.

Should the tenant pay compensation for cleaning?

I also consider the principal of estoppel is similarly relevant given no claim was raised at the end of the tenancy and the bond was returned to [The tenant/s] in full.

He accepts that he did not need to make a claim during this time but says the type of business provided a risk to the house given the nature of the clientele.

Accordingly, this claim is also dismissed. Filing fee

Because Zaki Abdullah was not successful with his claims, I decline to reimburse the filing fee. Suppression

[The tenant/s] seeks suppression orders and given she was successful in defending these claims, I approve that application.

Tenancy Tribunal case 5077048 — Mould & damp in Linwood, Christchurch

At a glance

Tenancy Tribunal case 5077048 — Mould & damp in Linwood, Christchurch

At a glance

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Should the tenant pay compensation for cleaning?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Should the tenant pay compensation for cleaning?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions