Published tribunal order
Tenancy Tribunal case 5158992 — Tenancy dispute
Decided 25 Apr 2025 · Published 25 Apr 2025 · Application 5158992
- Cleanliness
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the tenants’ names and identifying details.
- Dusky Holdings Limited must pay the tenants $697.00 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,320.00 ([Bond number suppressed]) to the tenants immediately.
Reasons
- All parties attended the teleconference hearing.
- The tenants have applied for overpaid rent, the bond, compensation for (i)the landlord’s excessive landlord’s cleaning requirements and (ii)failure to refund rent and the filing fee.
- The landlord has applied for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy. A. The Tenants’ Application Rent overpayment refund and compensation.
- The tenancy ended on 23 January 2025. The tenants mistakenly made a rent payment on 24 January 2025 which the landlord has withheld on the grounds that the tenants did not leave the property reasonably clean and tidy and therefore a termination date was not agreed.
- The mistaken rent payment must be refunded by the landlord. The landlord did not have the authority to hold the tenants’ money. The tenancy ended because the tenants issued a 28 day notice to end the tenancy. The landlord was mistaken by believing that the termination did not end until the parties agreed that the property was left in a suitable condition.
- I am satisfied that the tenants are entitled to nominal compensation for the inconvenience and stress relating to the landlord withholding their mistaken rent payment. I have ordered $100.00 compensation be paid to the tenants. Compensation for hours of work to complete cleaning etc required by the landlord after the tenancy ended.
- The tenants have claimed $1,000.00 compensation for the hours that they worked and for the inconvenience caused by the landlord’s demands to clean and tidy the property. However the tenants could have refused to carry out the work that the landlord required and made an application to the Tribunal at that time to assist them regarding the bond and overpaid rent. The claim for compensation regarding this must be dismissed, B. The Landlord’s Application Rent arrears.
- The landlord has claimed rent arrears because the property could not be rented until remedial work was carried out at the property. The landlord claimed that the condition of the property was not tidy enough and the agent would not show it to prospective tenants. The tenants submission was that they cleaned the property and the areas that the landlord complained about were areas the landlord failed to maintain.
- To prove a loss of rent the landlord must show either that the property was in such a seriously unclean or untidy condition that it was not suitable for showing to prospective tenants or that there was a new tenancy in place and those tenants could not move in because of the condition of the property.
- Having considered all the evidence provided by the parties I do not find it proved that the property was in a condition that it could not be shown to prospective tenants. Secondly there was no loss of rent due to a delayed tenancy.
Are the tenants liable for water rates?
- The landlord has claimed that the tenants did not pay water rates for their consumption of water. John said he assumed that they were paying for water consumption and didn’t notice that the company was paying the full amount. The tenants have submitted that there was a conversation with the landlord at that time where John indicated that it was more trouble than it was worth to have his accountant calculate water usage and to forget about paying for water. They said they had offered to pay at various times but there were reasons John didn’t require payment.
- John did not raise the issue of non-payment of water rates until after the tenancy ended. That was almost 4 years after the last payment for water by the tenants. Based on this evidence, I prefer the tenants’ recollection that the landlord decided that they were not required to pay for water.
- There is also an estoppel that applies in this case. In simple terms, where there is a long period of time where a party does not request a payment from a person, that person can reasonably assume they are no longer required to make those payments.
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 landlord has claimed that the tenant did not leave the premises reasonably tidy. The landlord said that the garden was left in a mess and a sandpit not removed.
- The tenants’ submission is that throughout the almost six year tenancy they caried out maintenance at the property that a landlord would normally be responsible for. This included that the landlord did not trim trees and bushes during the tenancy. The property included cabbage and palm trees that dropped a large amount of debris. The tenants’ claim is that removal of this debris was beyond maintaining lawns and gardens, which is usually a tenant’s responsibility. They did remove some of the debris. They provided photos of and tip fee dockets for trailer loads of foliage debris John wanted removed.
- The parties provided photos of the condition of the property at the end of the tenancy. The landlord said that the tenants’ photos were taken after his contractor carried out work cleaning up the property. However the tenants’ photos were provided with their application which was before the landlord’s contractor carried out any work. I am satisfied the tenants did leave the property in a reasonably tidy condition as is required by the Residential Tenancies Act 1986 (RTA).
- Regarding the debris from the trees that collected on the property I am satisfied that that cleanup work is the responsibility of the landlord in maintaining the property. There was sufficient volume of material that accumulated. The maintenance required from trees is a landlords responsibility as maintenance during a tenancy. See section 45(1)(b).
- Regarding the sandpit, there is no dispute that the landlord did not initially require the removal of the sandpit. On or about 25 January he said he would check with Cathy about whether she wanted the sandpit to stay at the property. The sandpit had been built by one of the tenants. The tenants said it could easily be deconstructed but John did not get back to them until 2 February that he wanted it removed. The tenants emailed back that they would remove it but that they would have to find a suitable time because of childcare. Arrangements were made for a key for that and other work. John said he asked the tenants to remove it but they failed to do so and he got tired of waiting and had it removed on 16 February.
- The removal of all sandpit material was the tenants’ responsibility and it should have been removed by 23 January when they moved out or shortly after 2 February when John emailed asking for it to be removed.
- John provided an invoice for landscape work carried out by a contractor. The invoice does not itemize the cost of removing the sandpit. There is a dump fee of $210.00 mentioned but that included removal of a substantial amount of debris from the trees. Based on the evidence available I have allowed $50.00 for the removal of the sandpit. Curtain replacement
- The landlord has claimed compensation for curtains. John stated one window had one of two curtains when the tenancy ended. The tenants said that the landlord provided curtains and helped them hang them. However they were so bulky that only one was required. In the bedroom the curtain was by a wall heater and so one was used. They said that the landlord later collected the unused curtains for another property.
- There is sufficient uncertainty about what happened regarding curtains at the property that it would be unsafe for the Tribunal to make an order regarding this claim.
- I should add that the curtains claimed for were six years old at the end of the tenancy and therefore the $80.00 claimed would be depreciated to no more than $10.00. Filing Fee
- Because the tenant has been successful with the claim the filing fee of $27.00 is ordered to be paid by the landlord. Suppression
- The Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (s.95A(4). The tenants have been substantially successful with their application and therefore their name and identifying particulars have been suppressed.