Published tribunal order
Tenancy Tribunal case 4500481 — Cleanliness at Unit/Flat 2, 47A Wintere Road, Papatoetoe, Auckland 2025
Decided 19 Jul 2023 · Published 19 Jul 2023 · Application 4500481
Dismissed
- Cleanliness
- Exemplary damages
- Property damage
Order
- No suppression orders apply to the publication of this decision.
- Orepa Tagai Toe to pay Ting Ting Ip as agent for Chun Kit Ip the sum of $4,596.96 immediately, calculated as follows: ItemAmount Previous Tribunal order$664.31 Lawn mowing$480.00 Tribunal filing fee (x2)$40.88 Door locks and key replacement$312.32 Light fitting replacement and lightbulbs$99.05 Pest control$53.13 Mops and rubbish bags$22.58 Carpet cleaning$240.00 Oven cleaning$200.00 Curtains and nets$650.00 Rubbish removal$239.69 Packing tenant goods$255.00 Cleaning, water blasting and furniture removal $2,500.00 Fridge and BBQ removal$80.00 Window repair$170.00 Exemplary damages (abandonment of tenancy)$750.00 Minus Bond-$2,160.00 Total owed by tenant to landlord$4,596.96
- The Bond Centre is to release the Bond (3540010-006) of $2,160.00 to Ting Ting Ip as agent for Chun Kit Ip immediately.
Reasons
- The Tribunal must consider an application filed by the landlord and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- Only the landlord appeared at the hearing. I am satisfied that the tenant has been property notified of the hearing, and therefore I will proceed to consider the claim in her absence. Application for cleaning and rubbish removal
- The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
- It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean. The Tribunal will also take into account factors such as the length of the tenancy, and the general condition of the premises.
- It is also relevant to note, that the onus for establish the claim, sits with the person making it. If the landlord is seeking to recover costs for cleaning and rubbish removal for example, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed.
- The landlord has claimed a total of $480.00 for lawn mowing over the course of the tenancy. The obligation for mowing lawns sits with the tenant being an obligation to ensure the premises remain tidy over the course of the tenancy. This claim is ordered in full.
- As part of the cleaning process the landlord needed to undertake a flea treatment. I have no reason to consider that is not reflective of the premises not being returned reasonably clean by the tenant. This claim is ordered.
- As part of the cleaning cost, the landlord has purchased cleaning items and rubbish bags. The photographs show the premises were very dirty, and littered with extensive rubbish. This claim is reasonable in the context of the state of the premises.
- As above the premises were very dirty when returned to the landlord. The landlord has claimed costs for carpet cleaning which would be expected given the work that would have been needed to clean the premises including carpets. Carpet cleaning was required on two occasions given the state of the carpet. This claim is ordered.
- The landlord has claimed costs for cleaning the oven. I accept the oven was not returned reasonably clean at the end of the tenancy. This claim is ordered in full.
- The landlord has claimed for rubbish disposal costs. Again there was extensive rubbish on the premise, this claim is ordered in full. Application for compensation
- 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 caused carelessly, and is covered the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(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 the High Court decision of Guo v Korck [2019] NZHC 1541.
- The landlord has claimed the cost to replace door locks, given the keys were not returned at the end of the tenancy. When the tenancy ends the tenant must return all keys, and failing to do so means the tenant will become liable for the lock replacement costs. This is ordered.
- The landlord has claimed costs to repair and replace some light fittings that were broken and missing at the end of the tenancy. I have no reason to consider this damage was beyond fair wear and tear, the tenant has not proven the damage was not careless or intentional damage. This claim is ordered.
- The landlord has claimed costs to repair the element on the stove. This claim is declined, because there is insufficient evidence to show that this work is not simple maintenance, which is the landlords responsibility. This claim is dismissed.
- The landlord has claimed replacement costs for curtains and nets that the landlord explained have been torn off. The landlord describes those items as being in good condition at the start of the tenancy. I have no reason to conclude that the damage is beyond fair wear and tear, and either careless or intentional damage. This claim is established and is ordered in full.
- The landlord needed to put some tenant goods into storage, and has claimed for costs in packing and dealing with those goods. This is ordered in full, as the tenant was required to remove all goods at the end of the tenancy.
- The landlord has claimed $2,500.00 for water blasting to remove graffiti outside of the house, deep cleaning and removing furniture left on the premises. The tenant has not proven that graffiti was not caused by her or someone on the premises with her consent. The tenant needed to remove all goods and rubbish. The premises were very dirty. This claim seems reasonable.
- Costs have been incurred with reglazing a broken window, the quote for this work is $170.00. Broken windows are rarely fair wear and tear, and more likely to represent careless or intentional damage. The tenant has not proven the damage is now either of those circumstances. The quote is reasonable and ordered in full.
- The landlord has separately paid to have the fridge and BBQ disposed of. The tenant must be liable for that cost also.
- The landlord has claimed the filing fee for both this current application, and application 4495202, which was the application seeking to terminate the tenancy because of abandonment. Both filing fees must be paid by the tenant, given the landlord has been successful with both applications. Exemplary damages
- The landlord has claimed exemplary damages for the tenant abandoning the premises.
- Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
- Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
- The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
- In this case the RTA confirms that a tenant abandoning the premises is an unlawful act (see section 61(5)).
- Taking into account the section 109 factors I conclude: a. The evidence favours a conclusion that the tenant intended to abandon the premises. b. The effect was to cause significant inconvenience and work for the landlord. c. There is a strong interest for the landlord and public generally that tenants do not abandon premises as has occurred here. d. It would be just to make an order.
- Taking into account the overall circumstances of this case, including the work the landlord has needed to undertake because of the abandonment, I consider an order of exemplary damages at 50% of the maximum would be indicated. The maximum level of exemplary damages for this unlawful act is $1,500.00, I therefore order the tenant to pay $750.00 to the landlord. Enforcement of order
- As I noted at the hearing, if the landlord needs to enforce the order against the tenant, then that can be done via the Ministry of Justice Collections Unit. More information on that process can be found here: https://www.justice.govt.nz/fines/about-civil-debt/collect-civil-debt/