What was the outcome of Tenancy Tribunal case 4553811?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4553811?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4553811?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4553811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9539867-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4553811?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4553811?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4553811?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4553811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9539867-Tenancy_Tribunal_Order.pdf.

88 Naylors Drive, Mangere, Auckland 2022 Tenancy Tribunal Case 4553811 — Cleanliness

Order

No suppression orders apply around publication of this decision.
Nadezhda Kozlova must pay Marieta Uatoimala Moli and Afaese Farane $1,600.17 immediately, being fixed water charges.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant. The tenancy has ended, and at the end of the tenancy the tenants agreed to undertake work or paid compensation for various things to the landlord. The tenants now seek a repayment of various amount because they dispute that they should have paid for those costs when they did. The tenants also seek to recover the fixed portion of the water charges.

BACKGROUND

The tenancy agreement records the landlord as “Nadezhda (Nadia) Kozlova authorised person: Andrei Kozlov”. The tenants are Afaese Farane and Marieta Moli.
The tenancy commenced on 3 March 2015, with later renewals. The tenancy ended in August 2022.
This hearing was convened on 17 October 2023 by telephone, however I had a Russian interpreter in attendance for assistance. I note that it was agreed that the hearing would be conducted in English, and if anyone needed assistance of the interpreter, then we would use the interpreter at that time.
I also record that Mr Andrei Kozlov was telephoned for the hearing, and he responded that he was not the landlord, it was Ms Kozlova. Following discussion with Ms Moli and Ms Kozlova, they both agreed that the correct (sole) landlord was Ms Kozlova, so we proceeded on that basis, with only Ms Kozlova in attendance as respondent. I note that the tenancy agreement would suggest that the landlord is only Ms Kozlova, but that her representative or agent is Mr Kozlov. So it was appropriate to proceed with only Ms Kozlova in attendance.
While the tenants application to the Tribunal was extensive, there were only five claims advanced at the hearing, which I will address shortly.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant, that is the tenant in this case), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.

TENANTS CLAIMS

Fixed water charges

The tenant’s position is that the landlord has overcharged for the water charges, in that the landlord has claimed for the fixed water charges over the course of the tenancy. The tenants had calculated the fixed water charges paid for the tenancy being $1,600.17. The tenant said that they did not realise they were not liable to pay the fixed charges for the water until recently.
The landlord states that in the tenancy agreement the tenants had agreed to pay all water charges, and during the course of the tenancy the tenants were given a further option around no longer paying the water, and they elected to pay the water separately. Analysis
The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises. Section 39 of the RTA is a provision which sets out the landlord and tenants “responsibility for outgoings”. Subsection 3 records: The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.
The effect of section 39(3) is that the tenant is only liable for outgoings in respect of the premises that are “exclusively attributable” to the specific tenancy.
The landlords position is that there was a provision in the tenancy agreement which allowed the full water charges to be charged. Section 11 of the RTA, which addresses the situation where a provision in a tenancy agreement is inconstant with the RTA itself is relevant. Section 11 records: 11 Act generally to apply despite contrary provisions a. Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— i. the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or ii. the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. b. ... c. Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
On the face of it, the provision in the tenancy agreement is inconsistent with section 39(3) of the RTA, because the outgoings charge is not based on the usage exclusively attributable to the tenant’s occupation.
It is well established in New Zealand that the supply (fixed) water charges cannot be charged to the tenant. I note for example the Tenancy Services Website states: Who pays for fixed water charges Water suppliers charge for wastewater in different ways, which varies around the country. In some cases, a portion of the water charges may include a fixed charge for incoming freshwater or outgoing wastewater. If the supplier charges a fixed amount for water regardless of whether the property is occupied or not, the landlord is responsible for paying those charges. If the supplier only charges a fixed amount for water when the property is occupied, the tenant is responsible for paying those charges.
See https://www.tenancy.govt.nz/rent-bond-and-bills/water-and-wastewater- charges/
In this case the landlord has not disputed the tenants calculations around the fixed charges brought for the water, the amounts claimed seem correct.
The tenant has established that the landlord has overcharged for the fixed water charges, which are the landlords responsibility, so this claim is ordered in full. Carpet cleaning
The tenant said that at the end of the tenancy Mr Kozlov advised the tenants that they needed to get the carpet professionally cleaned. The tenant considers that the carpet was not that bad prior to the carpet cleaning being completed. The tenant noted that they do not wear shoes inside, but did as the landlord had requested. The tenant states the whole house was professionally cleaned.
The landlord consider that the carpet was clean at the start of the tenancy. Ms Kozlova advised she does not know what was discussed between the tenants and Mr Kozlov. The landlord referred to the photographs provided to the Tribunal, which she submitted shows justification for the carpet cleaning. Analysis
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.
I have considered the evidence available, and conclude that the tenant has not proven that the carpets were returned in a reasonably clean and tidy state, so as to find the landlord must reimburse this cost. Again it is the tenant who carries the burden of proving her claim, it is the tenant who must prove the carpet was reasonably clean, and she has not done so. Because the tenant has not proven this claim, it is dismissed. Rent over charge
The tenant states that the rent was increased during the tenancy, but the landlord has applied the rent increase early. In particular the tenant says the rent was to increase from 16 January 2021, but it was in fact increased from 16 December 2020.
The landlord opposes this claim, disputing that there is evidence supporting it. Analysis
I have reviewed the emails provided by the tenant in support of her claim, but cannot find any communication which notifies of a rent increase and the date it would apply. In the absence of evidence being presented showing an early application of the rent increase, this claim has not been established so it is dismissed. Rubbish removal
The tenant disputes that she left rubbish on the premises, but seems to have accepted there was some items left on the premises, but that the landlord stated it would cost $150.00 to remove the claimed rubbish. The tenant wanted to see a receipt that the landlord had in fact paid for this rubbish removal work. The tenant states that what was put in were trees for food, and any planters were of a decent standard.
The landlord maintains that the tenant had left a range of rubbish on the premises including wooden planter boxes, which the landlord did not consider were attractive. Analysis
The tenant must prove that there was no rubbish left on the premises at the end of the tenancy, and she has not done so. Even in relation to the planter boxes, the tenant was still obligated to remove them at the end of the tenancy, and to return the premises materially similar to how it was received. Because the tenant has not proven this claim, it is dismissed. Security light
The tenant states that Mr Kozlov stated that they had damaged the security light, and they needed to pay $30.00 for that. The tenant said that the light could have been damaged by a child or some other person causing damage to the security light. But the tenant said they did not cause the damage.
The landlords position is that the tenants did damage the light, and did things to the tenancy without permission. The landlord considers the damage could have occurred when the tenants installed their security cameras. Analysis
The general position with claims for damage during the tenancy is that the landlord must firstly prove the damage 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.
However in this case the claim is from the tenant, so it is the tenant that must prove the damage was fair wear and tear, or that they did not carelessly or intentionally cause the damage, but I must conclude the tenants have not disproven liability. I can see no basis upon which I could order the landlord to refund the $30.00 the tenants paid to compensate the landlord for this damage.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case tenant has applied for name suppression, but because the tenants have not been wholly or substantially successful in the hearing, name suppression is declined.

Tenancy Tribunal case 4553811 — Cleanliness at 88 Naylors Drive, Mangere, Auckland 2022

At a glance

Tenancy Tribunal case 4553811 — Cleanliness at 88 Naylors Drive, Mangere, Auckland 2022

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions