What was Tenancy Tribunal case 5109128 about?

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

How much money was awarded in case 5109128?

Cleaning: $480.00 awarded to tenant; Painting: $500.00 awarded to landlord

What type of tenancy dispute was case 5109128?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5109128?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11468408-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5109128 about?

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

How much money was awarded in case 5109128?

Cleaning: $480.00 awarded to tenant; Painting: $500.00 awarded to landlord

What type of tenancy dispute was case 5109128?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5109128?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11468408-Tribunal_Order_Redacted.pdf.

47B Gossamer Drive, Pakuranga Heights, Auckland 2010 Tenancy Tribunal Case 5109128 — Property damage

Claims and awards in Tenancy Tribunal application 5109128 — net $20.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Painting	$500.00		Repairs: Painting
Compensation: Cleaning		$480.00	Cleaning
Total award	$500.00	$480.00
Net award	$20.00
Bond	$2,880.00
Total payable by Tenant to Landlord	$20.00

Claims and awards in Tenancy Tribunal application 5109128 — net $20.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Painting	$500.00		Repairs: Painting
Compensation: Cleaning		$480.00	Cleaning
Total award	$500.00	$480.00
Net award	$20.00
Bond	$2,880.00
Total payable by Tenant to Landlord	$20.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s ame and identifying details.
[The tenant/s] to pay Hui Zheng $20.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,880.00 ([Bond number suppressed]) immediately apportioned as follows: Hui Zheng: $20.00 [The tenant/s]: $2,860.00

Reasons

Both parties attended the hearing.
The tenancy began on 22 December 2022 and ended on 12 December 2024.
The tenant’s claims are as follows: a. The property is not compliant with the healthy homes standards; b. The landlord breached the tenant’s quiet enjoyment; c. Clause 44 of the Tenancy Agreement is not enforceable.
The tenant seeks compensation and a refund of the bond.
The landlord claims the tenant is responsible for damage caused during the tenancy. The landlord seeks compensation and a refund of the bond.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike 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.
I deal with the tenant’s claims first and the landlord’s second. TENANT’S CLAIMS Healthy Homes Standards
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires a landlord to comply with the healthy homes standards.
The healthy homes standards are contained in the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The tenant claims that the property does not comply with the draught stopping standards in Regulation 26 and the moisture ingress and drainage standards in Regulations 27 – 29.
In support of their claim, the tenant gave evidence that the property was very cold in spring and winter. The tenant claims that they could feel a cold draught coming from all of the windows in the house when they placed their hand near the window. The tenant claims the draught occurred when the windows were closed.
The tenant also gave evidence that there was a significant amount of condensation on the windows in the property. The tenant first raised the issue with the landlord on 11 May 2023. Photographs of the condensation were provided to the Tribunal.
The tenant gave further evidence that sometime in June 2024, they noticed mould on some of the window frames, including the window frame of a window situated high above the staircase.
The tenant is a stay at home mum and is at home most of the time during the day. She claims that she ventilated the property throughout the day and ran a heater during winter to keep the property clean and dry, however this did not stop the condensation or mould.
The landlord gave evidence that the property was a brand new build and the tenant was the first person to live in it. The landlord submitted a copy of a Healthy Homes Standards Assessment Report competed by Healthy Rentals NZ. This report is dated 17 June 2023 and confirms that the property is compliant with the healthy homes standards.
The tenant did not submit their own report or any other expert evidence from an appropriately qualified building inspector to suggest that the report completed by Healthy Rentals NZ is inaccurate.
The tenant must prove that the property is not compliant with the healthy homes standards on the balance of probabilities.
The landlord has submitted an expert report dated 17 June 2023 confirming that the property is compliant. In the absence of any expert evidence to rebut the landlord’s report, the tenant has not persuaded me that the property does not comply with the healthy homes standards.
The tenant’s claim that the landlord breached section 45(1)(bb) RTA by not complying with the healthy homes standards is dismissed. Quiet enjoyment
Section 38 RTA states: (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
Section 38(3) RTA further states that contravention of section 38(2) in circumstances that amount to harassment of the tenant is declared to be an unlawful act.
In the context of section 38(1) and (2), “quiet” means peaceful, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession.” 1 Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
The principle of quiet enjoyment means that the tenant is able to live in the premises how they wish to live, and unless what they are doing is unlawful in some way, it is not for the landlord to interfere with that right.
The tenant claims the landlord breached their quiet enjoyment on 13 May 2023.
On this date, the landlord’s husband, Gary, visited the property to assess the condensation complained about by the tenant. The tenant claims that Gary yelled at her in front of her children and got up close to her face. The tenant gave evidence that Gary told her that the reason for the condensation was because she was not using the heat pump. The tenant claims that Gary told her that if she was worried about the electricity bill she needed to move. The tenant also claims that Gary insulted her about her English.
The tenant states that the encounter was very upsetting, especially as it occurred in front of her young children. The tenant submitted a copy of an email sent to the landlord on 12 June 2023 complaining about Gary’s behaviour.
The landlord accepts that Gary visited the address on her behalf on 13 May 2023 to investigate the issue of condensation. The landlord did not call Gary as 1 Kenny v Preen [1963] 1 QB 499. a witness and appeared to accept the tenant’s version of events about what occurred on 13 May 2023.
In explanation, the landlord gave evidence that her husband is in his mid-70’s and can sometimes be a little bit grumpy. The landlord claims that she immediately spoke with Gary about his behaviour after receiving the tenant’s email complaining about the encounter. The landlord submitted a copy of a text message she sent to the tenant apologising for Gary’s behaviour. The landlord also gave evidence that Gary delivered two flowerpots to the front door of the tenancy address as an apology to the tenant on 13 June 2023. The landlord submitted a copy of a text message sent by the tenant sent on 13 June 2023 stating: Hello Holly, you don’t need to apologise to me, it’s not your fault. Please let Gary know that I received his two plants. Me and the kids wasn’t home. ...
I find that the landlord’s husband was acting as the landlord’s agent on 13 May 2023. Therefore, his actions bind the landlord due to the general laws of agency however, I do not consider there was a breach of the tenant’s quiet enjoyment.
The landlord’s husband visited the address with the tenant’s permission. His actions were undoubtedly rude and clearly upset the tenant, however I do not find that the tenant’s use of the premises or ability to treat the property as their own home were affected as a result. This was an isolated incident. My conclusion might be different if there were repeated examples of the same behaviour. The tenant’s feelings were hurt, but this does not amount to a breach of quiet enjoyment.
This claim is dismissed. Enforceability of Clause 44 of the Tenancy Agreement
Clause 44 of the Tenancy Agreement states: Commercial clean on vacation: When the tenant vacates at the expiration or earlier termination of this tenancy the tenant will have the Premises commercially cleaned (including the carpets) at the tenant expense and provide a receipt for this work to the landlord.
Section 11 RTA states: Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless – (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification or restriction should be permitted.
The tenant claims Clause 44 of the Tenancy Agreement is not enforceable and seeks compensation of $480.00 to cover the cost incurred in hiring a professional cleaner.
Section 40(1)(e) RTA requires a tenant to leave the premises in a reasonably clean and tidy condition, and remove or arrange for the removal of all rubbish from the premises at the end of the tenancy.
I find that Clause 44 is inconsistent with section 40(1)(e) RTA. This is because a property can be left in a reasonably clean and tidy condition without the need to complete a commercial and carpet clean. Clause 44 imposes an obligation on the tenant over and above that which is required by the RTA.
The inconsistency is not expressly permitted by the RTA and I do not consider it is appropriate for the Tribunal to permit it having regard to the factors in section 11(1)(b) RTA.
The tenant submitted copies of text messages between themselves and the landlord at the end of the tenancy regarding a return of the bond. These messages read: Tenant ... Let me know what I need to do for bonds return. Landlord Hi Ayesu, it’s all good. As you may know from the contract, there are a few things to be done: 44. Commercial clean on vacation: when the tenant vacates at the expiration of this tenancy the tenant will have the Premises commercially cleaned (including the carpets) at the tenant expense and provide a receipt for this work to the landlord...
The tenant had the property commercially cleaned at a cost of $480.00 and submitted invoices for this amount.
The tenant claims they left the property reasonably clean and tidy before the professional clean was undertaken. The tenant claims they made sure the property was reasonably clean and tidy to ensure that the professional cleaner was required for as little time as possible to keep the cost low. The tenant did not submit any photographs of the property before the commercial clean was undertaken, but submitted a copy of a text message sent by the professional cleaner stating: Tenant When you clean first time with your wife can you please tell me what the condition on the house? Is it bad and dirty? Please be honest. Thank you. Cleaner When we arrived your house was not too bad honestly. You have maintained it. ...
The landlord did not submit any photographs showing the general condition of the property at the end of the tenancy. The majority of photographs submitted by the landlord were of marks to the walls.
On the balance of probabilities, I am satisfied that the tenant left the premises reasonably clean and tidy before the commercial clean was undertaken.
The tenant has proven their claim that Clause 44 of the Tenancy Agreement is inconsistent with section 40(1)(e)(iii) RTA, and that there was no need for a commercial and carpet clean to bring the property up to a reasonably clean and tidy standard.
The tenant’s claim for compensation of $480.00 is granted in full. LANDLORD’S CLAIMS 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. See sections 40(2)(a), 41 and 49B RTA.
Fair wear and tear has 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.
When considering a claim for compensation for damage, the Tribunal has a discretion to award either the full cost of replacement or diminution in value. In determining what option to award, the overarching principle is one of reasonableness. 2
The landlord claims the tenant is responsible for multiple marks on the walls and doors. The landlord claims the marks are more than fair wear and tear given the fact that there are so many. The landlord claims there is in excess of 80 marks throughout the house.
The landlord did not submit any photographs of the property taken at the beginning of the tenancy as part of an entry inspection, but gave evidence that the property was brand new and the tenant was the first person to live in it.
The landlord submitted photographs of the property taken at the end of the tenancy. These photographs are mostly close up photographs and show marks to the walls, doors and other areas of the house.
The tenant accepts that they are responsible for causing some minor dents and marks to the walls of the property.
The tenant gave evidence that some of these marks occurred when moving furniture in and out of the property. The tenant also gave evidence that her two children sometimes jumped on her bed, which may have caused the bedframe to rub against the wall in the master bedroom. Further, the tenant claims she had a sofa in the living area, which may have rubbed against the wall.
The tenant accepts that they caused a scratch to the door in the garage when trying to move a treadmill that was too wide for the doorframe. 2 Ruxley Electronics v Forsyth [1996] 1 AC 344.
The landlord pointed to the presence of slightly pink liquid on one of the internal doors. The landlord claims this was caused by the tenant who ran a nail salon from the property. The tenant denies causing this stain and gave evidence that it was there at the beginning of the tenancy. The tenant claims she uses gel nail polish, which is thick, not thing, like the liquid on the door.
The landlord also claims the tenant screwed something to the front doorframe. The tenant claims they installed a security camera and had the permission of the landlord to do this. The landlord denied giving consent for this.
I consider the majority of marks referred to by the landlord to be fair wear and tear. This tenancy was two years long. The tenant lived at the property with her two young children. The tenant is a stay at home mother and is therefore at home most of the time during the day. The majority of marks referred to by the landlord are small and consistent with fair wear and tear over the course of the tenancy.
I find that the tenant is responsible for carelessly damaging the following items: a. Walls in the stairwell; b. Garage door; and c. Entry doorframe.
The landlord has not had the property repainted. The landlord submitted a quote for $2,875.00 (including GST).
The landlord gave evidence that the property has been re-tenanted. The rent is $750.00 per week, which is the same rent the tenant paid.
The landlord has not suffered a loss, but I accept that there has been a slight diminution in value to the property as a result of the damage to the items listed above. The damage is moderate and I consider $500.00 fairly reflects the diminution in value.
I have taken into account betterment and depreciation.
The amount ordered is proved. Filing fee and suppression
Both parties have been substantially successful with their claims and therefore, I do not order either party to reimburse the filing fee.
The landlord did not apply for name suppression in their written application.
The tenant applied for name suppression in their written application.
The tenant has been substantially successful in their claim and I therefore grant their request for name suppression. See section 95A(1) RTA.

Tenancy Tribunal case 5109128 — Property damage at 47B Gossamer Drive, Pakuranga Heights, Auckland 2010

At a glance

Tenancy Tribunal case 5109128 — Property damage at 47B Gossamer Drive, Pakuranga Heights, Auckland 2010

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions