Published tribunal order
Tenancy Tribunal case 5263939 — Cleanliness at 55C Logan Street, Dargaville, Dargaville 0310
Decided 29 Jun 2025 · Published 29 Jun 2025 · Application 5263939
Landlord favoured
- Cleanliness
- Property damage
Order
- Bjorn Johansen, Hayden Wahanui and Kim Johansen must pay North Island Community Services Limited t/as Propertyscouts Whangarei (as agent for Martin Tutty and Alison Lindsay) $1,595.60 immediately, calculated as shown in table below.
Reasons
Background
- Bjorn Johansen and Hayden Wahanui entered into a one-year fixed term tenancy commencing on 17 May 2025.
- Kim Johansen signed the tenancy agreement as a guarantor.
- In late 2024, Mr Wahanui abandoned the tenancy.
- Mr Johansen was unable to keep up the rent payments on his own. He fell into rent arrears.
- The landlord brought an application to the Tenancy Tribunal seeking termination of the tenancy and rent arrears.
- On 10 April 2025 the Tenancy Tribunal made an order terminating the tenancy immediately, awarding rent arrears of $4,011.08, the filing fee of $27.00, and releasing the bond of $2,080.00 to the landlord. 1
- Mr Johansen paid $1,350.00 to the landlord on 9 May 2025.
- The landlord filed this second application after re-taking possession of the premises. The application seeks cleaning, rubbish removal, and repair costs.
- The hearing took place in Whangarei on 25 June 2025. Ms de Beer represented the landlord at the hearing. Bjorn Johansen and Kim Johansen attended by phone with the consent of the Tribunal.
- The following claims were not disputed: a. Rubbish disposal $36.07 b. Cleaning $105.00 c. Carpet cleaning $299.00 d. Pest treatment $325.45 e. Hang curtains $30.00 f. Repair holes in kitchen and bedroom $115.00 Damage to exterior and interior doors, broken window
- Ms de Beer provided photographs showing that that the entrance door was damaged (glass pane smashed), the window in the lounge was smashed and an interior door (bedroom) was badly damaged. 1 North Island Community Services Ltd v Johansen & Wahanui [2025] NZTT 5192452
- Mr Johansen said that the damage was caused during a home invasion by one of his neighbours. Mr Johansen said that he neighbours were very disruptive and anti-social. He said that the neighbours smashed the window on or around 5 March. A week later, they broke into the house when he was inside and attempted to force their way into the bedroom. Mr Johansen rang the police. The police arrived and the neighbours were arrested. Mr Johansen said that they are no facing charges in relation this incident.
- Ms de Beer was provided with a copy of the police complaint, but has no other information about the incident.
- Tenants are liable for damage caused by anyone who is at the premise with their consent 2 , but not for damage caused by trespassers.
- The nature of the damage shown in the photographs is consistent with Mr Johansen’s oral evidence. Mr Johansen accepted responsibility for two small holes in the walls (caused by a flatmate), but there is no other proven damage at the premises. On the balance of probabilities, I accept the damage to the doors and window was caused by the neighbours. Mr Johansen did not consent to them coming onto the property, and therefore Mr Johansen is not liable for this damage. Clothesline
- The clothesline was ‘collapsed’ on one side at the end of the tenancy.
- Mr Johansen said that the clothesline was aged and had rusted out, and it simply collapsed through ordinary use.
- Ms de Beer had a photograph of the clothesline from the beginning of the tenancy. It shows that the clothesline is intact but (understandably) it was taken from a distance and it is not possible to determine the integrity or extent of rust on the clothesline at that time.
- In any claim for damage the landlord has the burden of proof to establish that the damage occurred during the tenancy and that it is beyond fair wear and tear.
- I accept that if the clothesline was rusted then it could suddenly ‘give way’ when being used normally.
- My finding is that it is not proven that the clothesline was damaged by some careless or intentional action by the tenant.
- Therefore this part of the claim is dismissed. 2 Section 41 Residential Tenancies Act 1986 (“RTA”)
Who is liable?
- Mr Johansen and Mr Wahanui were both tenants on this fixed term tenancy.
- The fact that Mr Wahanui left the property does not end his liability. A fixed term tenancy cannot be ended by notice, and the landlord did not release Mr Wahanui from the tenancy.
- Mr Wahanui is jointly and severally liable for all of the proven costs.
- Although Mr Johansen feels that he has paid his share of rent arrears, unfortunately he is also jointly and individually liable for the full debt.
- Ms Johansen argued, somewhat half-heartedly, that she was misled into signing the tenancy agreement as a guarantor. The Tenancy Tribunal has the power to vary or set aside an agreement (wholly or partly) if the Tribunal is satisfied that the agreement was entered into on the basis of fraud or mistake. 3
- The starting point must be that Ms Johansen is an adult with capacity, and she signed a written agreement that has clear terms. Ms Johansen would have to ‘make the case’ that she was deceived or misled, or that she did not understand the agreement, and Ms Johansen did not make this argument clear at the hearing.
- Ms Johansen was the guarantor of this tenancy and she is also liable for the proven costs. Filing fee
- The landlord was largely successful in this application and I will also award the landlord the filing fee of $27.00. 4