What was Tenancy Tribunal case 5413108 about?

The tribunal order states: [The tenant/s] and [The tenant/s] to pay 360

How much money was awarded in case 5413108?

Cleaning: $359.38 awarded to landlord; Filing Fee: $28.00 awarded to landlord

What type of tenancy dispute was case 5413108?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5413108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13307295-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5413108 about?

The tribunal order states: [The tenant/s] and [The tenant/s] to pay 360

How much money was awarded in case 5413108?

Cleaning: $359.38 awarded to landlord; Filing Fee: $28.00 awarded to landlord

What type of tenancy dispute was case 5413108?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5413108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13307295-Tenancy_Tribunal_Order.pdf.

Unit/Flat Flat 8, 2 Fairview Road, Mount Eden, Auckland Tenancy Tribunal Case 5413108 — Cleanliness

Claims and awards in Tenancy Tribunal application 5413108 — net $387.38 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$359.38	Carpet Cleaning
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$387.38
Total payable by Tenant to Landlord	$387.38

Claims and awards in Tenancy Tribunal application 5413108 — net $387.38 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Carpet Cleaning	$359.38	Carpet Cleaning
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$387.38
Total payable by Tenant to Landlord	$387.38

Order

[The tenant/s] and [The tenant/s] to pay 360 Property Management Limited As Agent For Phil Evans $387.38 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $387.38 (3073317-021) to 360 Property Management Limited As Agent For Phil Evans immediately.
The Bond Centre is to pay the bond of $1,932.62 (3073317-021) to [The tenant/s] and [The tenant/s] immediately.

Reasons

The hearing was conducted via videoconference.
Ms Buissink, the property manager, appeared via video on behalf of the landlord.
The tenants, Mr Dissanayake and Ms Mudiyanselage, attended the hearing via video. Mr Dissanayake addressed me.
This is an application by the tenants, Mr Dissanayake and Ms Mudiyanselage, for the refund of the bond. The landlord, through the property manager Ms Buissink, filed a cross-application seeking compensation for damage to carpet and filing fee following the end of the tenancy.

What is in dispute?

The central issue in dispute is whether the tenants are liable for damage to the carpet in the lounge and bedroom 1 (the master bedroom), and if so, the extent of that liability.
The landlord claims that the tenants caused stains to the carpet in two separate areas during the tenancy. As a result, the landlord made an insurance claim which led to the replacement of the carpet in the affected areas. The landlord seeks recovery of two insurance excesses totalling $1,500.
In the alternative, the landlord seeks cleaning costs of $359.38 if the insurance excess is not awarded.
The tenants dispute liability for the carpet damage. They say they cannot recall whether the stains were present at the start of the tenancy and say they undertook cleaning at the end of the tenancy. They accept some cleaning was required but dispute the claim for insurance excess.

Is the tenant responsible for the damage to the premises?

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.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. The parties’ submissions
Ms Buissink submits that at the start of the tenancy the carpet was free of stains. She relies on the entry inspection report and photographs. She says that at the end of the tenancy there were visible stains in the lounge and bedroom 1.
Ms Buissink says the landlord arranged for professional cleaning, including spot cleaning of the carpet, at a cost of $359.38. The stains were not successfully removed.
As a result, the landlord lodged an insurance claim. The insurer treated the stains in the lounge and bedroom as two separate incidents, resulting in two excess payments of $750 each, totalling $1,500. Ms Buissink says this amount is payable by the tenants. She also says that if the insurance excess is not awarded, the tenants should at least be responsible for the cleaning costs.
In relation to the excess amount, Ms Buissink says that while the tenancy agreement refers to an excess of $500, the applicable insurance policy excess for a tenanted property is $750.
Mr Dissanayake submits that he does not recall whether the stains were present at the start of the tenancy. He says some marks may have existed but he cannot be certain. He denies intentionally causing any damage.
He says he arranged cleaning at the end of the tenancy and was willing to pay for further cleaning, including the initial quoted amount for spot cleaning. He disputes the increase in costs and the subsequent insurance claim.
Mr Dissanayake also submits that the tenancy agreement records an insurance excess of $500 and disputes the higher amount of $750.
He accepts responsibility for cleaning costs but says the claim for two insurance excesses and full carpet replacement is not reasonable or justified. He further says he accepts $359.38 as the cleaning cost and does not dispute Ms Buissink’s statement that he vacated the premises “in a rush.” Analysis
I turn first to the issue of whether the tenants are responsible for the stains on the carpet.
The landlord says the stains were not present at the start of the tenancy. The tenants say they cannot recall whether the stains were present when they moved in.
I have considered the entry and exit photographs. The exit photographs clearly show stains in the lounge and bedroom 1. These stains are distinct and identifiable. However, I note that the stains are not highly visible because they were professionally cleaned.
If the stains had existed prior to the tenancy, I would expect them to appear in the entry inspection report in a similar form. While there is some suggestion of minor marks in the entry photographs, I am not satisfied that they correspond to the stains seen at the end of the tenancy.
In addition, the tenants’ position is not that the stains were present at the start, but rather that they cannot remember. That is not sufficient to displace the landlord’s evidence.
On the balance of probabilities, I find that the stains in the lounge and bedroom 1 occurred during the tenancy. The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
I am not satisfied that the damage was intentional. There is no evidence to support that conclusion. However, given that staining occurred in two separate areas of the premises, I find that the damage was more than accidental and amounts to carelessness.
I therefore find that the tenants are responsible for the damage to the carpet.
I next address the issue of the insurance excess. Insurance excess and duty to mitigate the lose
Mr Dissanayake submits that the excess is $500 as stated in the tenancy agreement. Ms Buissink submits that the applicable excess under the insurance policy for a tenanted property is $750.
I accept Ms Buissink’s evidence as to the insurer’s position that the applicable excess is $750 per claim, and that two excesses were applied because the damage was treated as two separate incidents. However, there is no evidence before me to conclude that Mr Dissanayake was aware that the applicable excess was $750 at the time he took possession of the property as a tenant, rather than $500 as stated in the tenancy agreement.
However, that is not determinative of the tenants’ liability. The key issue is whether the landlord has complied with the obligation to mitigate loss under section 49 of the RTA.
Section 49 provides that where a party breaches the tenancy agreement, the other party must take all reasonable steps to limit the damage or loss arising from that breach.
In this case, after the tenants vacated the premises, the landlord arranged for professional cleaning, including spot cleaning of the carpet. That was an appropriate step.
Ms Buissink’s evidence is that the cleaning did not remove the stains. As a result, the landlord made an insurance claim. Following that claim, the carpet in the lounge and bedroom 1 was replaced in its entirety, giving rise to two excess payments totalling $1,500.
I accept that the landlord attempted to remedy the damage by professional cleaning and that those attempts were unsuccessful.
Ms Buissink also gave evidence that the carpet could not be matched and that there was no spare carpet available. She said the insurer did not suggest repair options such as patching or using carpet from other areas.
However, the fact that the insurer did not suggest alternative repair options does not mean that such options were not available or could not reasonably have been explored. The obligation to mitigate rests with the landlord.
The evidence before me does not satisfy me that the landlord took all reasonable steps to limit the loss before resorting to full replacement of the carpet.
The stains, while visible, were confined to relatively small areas of the carpet. There is insufficient evidence that other remedial options, such as further specialist treatment, patch repair, or partial replacement, were properly investigated and found to be ineffective.
In my view, replacing the entire carpet in multiple areas, thereby triggering two insurance excesses, was a disproportionate response to the nature and extent of the damage, in the absence of clearer evidence that less costly remedial options were not viable. Put more bluntly, the landlord did not sufficiently mitigate the loss and instead increased it by seeking $1,500 in excesses from the tenants.
The effect of the landlord’s approach is that the landlord has obtained the benefit of new carpet in those areas, while seeking to pass the cost of the insurance excess entirely onto the tenants.
In these circumstances, I am not satisfied that the landlord has taken all reasonable steps to limit the damage or loss as required by section 49.
Accordingly, I decline to award the insurance excess of $1,500.
I finally turn to the cleaning costs. Cleaning costs
The tenants accept that the property was not left in a reasonably clean and tidy condition and accept liability for the cleaning costs of $359.38.
I am satisfied that this cost was reasonably incurred.
I have taken into account betterment and depreciation. The landlord should 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 depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Filing fee
Both parties have obtained judgment in their favour. Accordingly, costs are to lie where they fall. Name suppression
Both parties sought name suppression.
I must grant name suppression if a party has wholly or substantially succeeded in the proceedings pursuant to section 95A(1) of the RTA.
In this case, neither party has wholly or substantially succeeded.
The tenants were successful in obtaining a refund of most of the bond. However, this does not amount to substantial success, as the landlord did not have a proper basis to retain the bond in full.
The landlord has also not substantially succeeded.
The landlord sought reimbursement of $1,500 for insurance excesses. I have declined that claim. The landlord did not take all reasonable steps to mitigate the loss as required by section 49 of the RTA. The damage was confined to limited areas of the carpet. The decision to replace the carpet in its entirety, resulting in two excess payments, was disproportionate in the absence of sufficient evidence that other reasonable remedial options had been properly explored. In these circumstances, it would not be reasonable to require the tenants to meet that cost.
Accordingly, both parties’ applications for name suppression are declined.

Tenancy Tribunal case 5413108 — Cleanliness at Unit/Flat Flat 8, 2 Fairview Road, Mount Eden, Auckland

At a glance

Tenancy Tribunal case 5413108 — Cleanliness at Unit/Flat Flat 8, 2 Fairview Road, Mount Eden, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

What is in dispute?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What is in dispute?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions