What was the outcome of Tenancy Tribunal case 4548916?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4548916?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4548916?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4548916?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9298434-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4548916?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4548916?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4548916?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4548916?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9298434-Tenancy_Tribunal_Order.pdf.

14 Mead Street, Avondale, Auckland 1026 Tenancy Tribunal Case 4548916 — Cleanliness

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord’s application is dismissed.

Reasons

Precious Onwkwe and Ana Marikova attended the hearing on behalf of the landlord.
There was no appearance by the tenants.
This application was filed some 9 months after the end of the tenancy. There is no evidence that the tenants are aware of the application or the hearing. Section 91A(2) Residential Tenancies Act (“the Act”) outlines the process a landlord must follow to serve a tenant if an application is filed more than 2 months after the end of the tenancy.
Normally I would simply adjourn the hearing for service to be properly effected on the tenants.
However, in this case I am not satisfied that the landlord has been able to establish the claims so there is no prejudice to the tenants that the hearing proceeded in their absence.
The tenancy ended on 5 July 2022.
The landlord wants the tenants to pay for cleaning and for damage.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Cleaning
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy.
The Residential Tenancies Act 1986 (“the Act”) does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
This tenancy property was built in the 1920s and much of the property while the tenants were in situ was in original or nearly original condition.
The difficulty the landlord faces in this case are twofold.
First, there is no evidence as to the state of the premises at the start of the tenancy. No pre-entry inspection reports or photographs have been produced. At the end of the tenancy what has been produced are selective photos of the areas said to have not been cleaned rather than photos that show the overall state of the premises.
I observe from the photographs provided that even in areas which are arguably not clean, much of the dirt appears to have been there for decades, not just since the beginning of the tenancy. I am therefore not satisfied that the tenants have, in the circumstances, failed to leave the premises reasonably clean and tidy.
I acknowledge that the property managers were not managing the property at the start of the tenancy and no criticism of them is intended by these remarks.
Secondly, it seems as though soon after the tenants vacated the premises the owners undertook a renovation of the premises, which appears to have involved, new kitchen cabinets, bathroom vanities, laminate flooring throughout and fresh painting. It is difficult to see why the tenants would be liable for cleaning when that amount of work was shortly thereafter to be undertaken.
The landlord pointed out that they had nevertheless incurred the cost because they simply arranged an end of tenancy clean in line with their normal practice. They said that the owner did not advise them that they would be taking the property back and doing those renovations.
I accept that is so. However, that is a matter between the property management company and the owner. If they cannot reach a resolution there are options available in a different forum. It does not make it a tenant liability. Damage
For a landlord to succeed in a claim for damage, they must prove that the 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 of the Act.
The landlord is claiming for the cost of repairing two broken windows, one in a door to the lounge and one in the sunroom.
Again, the landlord is unable to provide any evidence as to the state of the premises at the start of the tenancy. No pre-entry inspection reports or photographs have been produced. That would normally be a failure at the first stage of the test.
In this case however, I would be prepared to accept that an email from the tenant dated 11 February 2022 requesting repair of a “window in the small room” (which I take to be the sunroom) which had “a small crack... caused by our son who hit it by accident”.
It is unclear why that window was still not repaired prior to the tenants moving out in July 2022.
There is no evidence as to the cause of the other broken window or when it happened.
Moreover, the invoice produced (from Handy Mate Ltd) simply refers to “Window glass large x 2” at a cost of $780.00. This seems inconsistent with the specific damage attributed to the tenants and is also inconsistent with the damage actually shown in the photographs (one of which was a small pane of mottled glass, the other a medium sized standard pane)
The invoice is also dated 8 November 2022 which is only a couple of weeks before new tenants moved in on 24 November 2022, and after the renovations had been completed.
I am not satisfied on balance that the landlord has established that the damage has been caused by the tenants.
Even if it was, I cannot be satisfied that any loss has actually been incurred due to this damage, because it appears that the invoice was part of overall renovations, repairs and maintenance undertaken at the property well after the tenants vacated.
For those reasons, the landlord has not established their claims to the requisite standard and the application must be dismissed. J R Smith 15 August 2023

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord’s application is dismissed.

Reasons

Precious Onwkwe and Ana Marikova attended the hearing on behalf of the landlord.
There was no appearance by the tenants.
This application was filed some 9 months after the end of the tenancy. There is no evidence that the tenants are aware of the application or the hearing. Section 91A(2) Residential Tenancies Act (“the Act”) outlines the process a landlord must follow to serve a tenant if an application is filed more than 2 months after the end of the tenancy.
Normally I would simply adjourn the hearing for service to be properly effected on the tenants.
However, in this case I am not satisfied that the landlord has been able to establish the claims so there is no prejudice to the tenants that the hearing proceeded in their absence.
The tenancy ended on 5 July 2022.
The landlord wants the tenants to pay for cleaning and for damage.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Cleaning
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy.
The Residential Tenancies Act 1986 (“the Act”) does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
This tenancy property was built in the 1920s and much of the property while the tenants were in situ was in original or nearly original condition.
The difficulty the landlord faces in this case are twofold.
First, there is no evidence as to the state of the premises at the start of the tenancy. No pre-entry inspection reports or photographs have been produced. At the end of the tenancy what has been produced are selective photos of the areas said to have not been cleaned rather than photos that show the overall state of the premises.
I observe from the photographs provided that even in areas which are arguably not clean, much of the dirt appears to have been there for decades, not just since the beginning of the tenancy. I am therefore not satisfied that the tenants have, in the circumstances, failed to leave the premises reasonably clean and tidy.
I acknowledge that the property managers were not managing the property at the start of the tenancy and no criticism of them is intended by these remarks.
Secondly, it seems as though soon after the tenants vacated the premises the owners undertook a renovation of the premises, which appears to have involved, new kitchen cabinets, bathroom vanities, laminate flooring throughout and fresh painting. It is difficult to see why the tenants would be liable for cleaning when that amount of work was shortly thereafter to be undertaken.
The landlord pointed out that they had nevertheless incurred the cost because they simply arranged an end of tenancy clean in line with their normal practice. They said that the owner did not advise them that they would be taking the property back and doing those renovations.
I accept that is so. However, that is a matter between the property management company and the owner. If they cannot reach a resolution there are options available in a different forum. It does not make it a tenant liability. Damage
For a landlord to succeed in a claim for damage, they must prove that the 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 of the Act.
The landlord is claiming for the cost of repairing two broken windows, one in a door to the lounge and one in the sunroom.
Again, the landlord is unable to provide any evidence as to the state of the premises at the start of the tenancy. No pre-entry inspection reports or photographs have been produced. That would normally be a failure at the first stage of the test.
In this case however, I would be prepared to accept that an email from the tenant dated 11 February 2022 requesting repair of a “window in the small room” (which I take to be the sunroom) which had “a small crack... caused by our son who hit it by accident”.
It is unclear why that window was still not repaired prior to the tenants moving out in July 2022.
There is no evidence as to the cause of the other broken window or when it happened.
Moreover, the invoice produced (from Handy Mate Ltd) simply refers to “Window glass large x 2” at a cost of $780.00. This seems inconsistent with the specific damage attributed to the tenants and is also inconsistent with the damage actually shown in the photographs (one of which was a small pane of mottled glass, the other a medium sized standard pane)
The invoice is also dated 8 November 2022 which is only a couple of weeks before new tenants moved in on 24 November 2022, and after the renovations had been completed.
I am not satisfied on balance that the landlord has established that the damage has been caused by the tenants.
Even if it was, I cannot be satisfied that any loss has actually been incurred due to this damage, because it appears that the invoice was part of overall renovations, repairs and maintenance undertaken at the property well after the tenants vacated.
For those reasons, the landlord has not established their claims to the requisite standard and the application must be dismissed. J R Smith 15 August 2023

Tenancy Tribunal case 4548916 — Cleanliness at 14 Mead Street, Avondale, Auckland 1026

At a glance

Tenancy Tribunal case 4548916 — Cleanliness at 14 Mead Street, Avondale, Auckland 1026

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions