Published tribunal order
Tenancy Tribunal case 4527109 — Cleanliness at 158 Carlyle Street, Napier South, Napier 4110
Decided 27 Sept 2023 · Published 27 Sept 2023 · Application 4527109
Tenant favoured
- Cleanliness
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Elizabeth Yarwood must pay Suden Lakshmanan and Abi Sivananshan $274.56 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing. The landlord attended with a witness.
- The matter consists of a tenant application (4527109) and landlord cross application (4527109). It relates to a dispute over the bond.
- The tenant withdrew a claim that the landlord had breached the Healthy Homes Standards at the outset of the hearing on the basis that they had no evidence and their position was simply that the premises were cold.
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 and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. Cleaning and rubbish removal
- The landlord claims the property was not left in a reasonably clean and tidy state. The landlord claims a nominal sum of $30.00 to remove rubbish left behind by the tenants and $60.00 towards cleaning, being two hours of a cleaner at $30.00 per hour. The landlord provided photographs from the end of the tenancy supporting her claims.
- The tenant claims to have spent two days cleaning the premises and also submits that they hired a cleaner. The tenant provided no evidence e.g., photographs or invoices supporting their defence.
- Whilst I consider that it is likely that the tenant did clean the premises when they vacated, there were a few items that were not left reasonably clean and tidy including the bottom of the pantry, inside various cupboards, the bottom of the fridge, the freezer and the oven hob. The tenant did not remove all rubbish, including leaving behind some cardboard and clothing. On that basis, I find that some further work was required to ensure the premises were left in a reasonably clean and tidy state and the amounts claimed by the landlord are entirely reasonable.
- The amounts ordered are proved. Lawns and gardens
- The landlord claims a $150.00 contribution towards the cost of garden work. The landlord provided a selection of photographs showing the garden was overgrown with weeds. The landlord claims to have paid $450.00 to her partner for materials and labour to return the garden to its original state. The landlord provided photographs from the end of the tenancy supporting her claims. The landlord’s witness provided evidence supporting the claims that the gardens were overgrown.
- The tenant claims that they paid someone to attend to the garden on a regular basis during the tenancy. Again, the tenant provided no evidence e.g., photographs or invoices supporting their defence.
- The tenant is not required to leave the garden in an immaculate standard. Instead, the tenant must keep the gardens reasonably tidy. Having carefully considered the evidence the Tribunal finds that some further work was required but also notes that the landlord was focused on returning the premises to the state it was in when they purchased the property which is not the responsibility of the tenant. The tenant is ordered to pay a nominal sum of $50.00.
- The amount ordered is proved.
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 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. Damage to fridge
- It was not disputed that the fridge was missing two shelves when the tenants vacated the property. The landlord attempted to find replacement shelves but to no avail. The landlord offered the tenants the opportunity to replace the shelves, but they refused to communicate with the landlord regarding the issue.
- The landlord claims the full cost to replace the fridge ($390.00).
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. Overall, I consider the damage was most likely careless damages, and that the tenant must be liable for the replacement cost.
- 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. IRD assesses the useful life of a fridge to be 8 years. The landlord says that the fridge was new at the start of the tenancy which was 4 years ago.
- The amounts ordered are proved. Repainting windowsills
- The landlord claims the cost of repairing the windowsill where the wood is damaged, and paint is peeling off which the landlord contends is as a result of the tenant’s not ventilating the premises. The landlord submitted email correspondence between her and the tenants regarding the need to ventilate the premises. The landlord’s witness attested to the damaged windows and the likelihood that it had arisen from moisture build up.
- The tenants states that they did ventilate the premises as much as they could but that it was difficult as there was no fan in the bathroom and the windows were single glazed.
- Condensation is a common feature of New Zealand homes and relates to the temperature and nature of a building. Single glazed windows can create condensation, particularly on cold nights. As such tenants are obligated to ventilate their homes and wipe up condensation.
- Having considered all the evidence provided, I consider it is more probable than not that the windows were inherently prone to condensation in the winter months.
- Although the landlord suggested the tenant may not ventilate adequately, this seemed to be to be speculative. The suggestion was strongly denied by the tenants, who said they had windows open often.
- This part of the landlord’s claim is dismissed. Filing fee
- Because the landlord has substantially succeeded with the claim I must reimburse the filing fee. T Lee-Lewis 27 September 2023