What was the outcome of Tenancy Tribunal case 4554450?

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

How much money was awarded in case 4554450?

Cleaning: $402.50 awarded to landlord; Compensation: $100.00 awarded to landlord; Dismantling A Swing Set: $50.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Mileage: $40.00 awarded to landlord; Rent Arrears: $1,920.00 awarded to landlord; Rubbish Removal: $360.00 awarded to landlord; Tip Fees: $374.12 awarded to landlord; Water Rates: $436.45 awarded to landlord

What type of tenancy dispute was case 4554450?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4554450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9500960-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4554450?

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

How much money was awarded in case 4554450?

Cleaning: $402.50 awarded to landlord; Compensation: $100.00 awarded to landlord; Dismantling A Swing Set: $50.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Mileage: $40.00 awarded to landlord; Rent Arrears: $1,920.00 awarded to landlord; Rubbish Removal: $360.00 awarded to landlord; Tip Fees: $374.12 awarded to landlord; Water Rates: $436.45 awarded to landlord

What type of tenancy dispute was case 4554450?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4554450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9500960-Tribunal_Order.pdf.

51C Vincent Street, Howick, Auckland 2014 Tenancy Tribunal Case 4554450 — Rent arrears

Claims and awards in Tenancy Tribunal application 4554450 — net $1,363.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as at end of tenancy	$1,920.00	Rent arrears as at end of tenancy
Carpet Cleaning	$402.50	Carpet Cleaning
Dismantling a swing set	$50.00	Dismantling a swing set
Mileage	$40.00	Mileage
Labour for rubbish removal	$360.00	Labour for rubbish removal
Filing fee for possession order	$20.44	Filing fee for possession order
Tip fees	$374.12	Tip fees
Water rates	$436.45	Water rates
Compensation for heater	$100.00	Compensation for heater
Net award	$1,363.51
Total payable by Tenant to Landlord	$1,363.51

Claims and awards in Tenancy Tribunal application 4554450 — net $1,363.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as at end of tenancy	$1,920.00	Rent arrears as at end of tenancy
Carpet Cleaning	$402.50	Carpet Cleaning
Dismantling a swing set	$50.00	Dismantling a swing set
Mileage	$40.00	Mileage
Labour for rubbish removal	$360.00	Labour for rubbish removal
Filing fee for possession order	$20.44	Filing fee for possession order
Tip fees	$374.12	Tip fees
Water rates	$436.45	Water rates
Compensation for heater	$100.00	Compensation for heater
Net award	$1,363.51
Total payable by Tenant to Landlord	$1,363.51

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Shannon Rae Craft must pay David Howe As Trustee For Pelaez Family Trust $1,363.51 immediately, calculated as shown in table below:
All other claims are dismissed. DescriptionLandlord Rent arrears as at end of tenancy$1,920.00 Carpet Cleaning$402.50 Dismantling a swing set$50.00 Mileage$40.00 Labour for rubbish removal$360.00 Filing fee for possession order$20.44 Tip fees$374.12 Water rates$436.45 Compensation for heater$100.00 Total award$3,703.51 Minus bond-$2,340.00 Total payable by Tenant to Landlord$1,363.51

Reasons

The Tribunal must consider an application filed by the landlord.
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
This hearing has been previously adjourned. A hearing was scheduled as an in person hearing in Manukau. Neither party attended. Both parties telephoned into the hearing. I raised with the parties that this was not an ideal case to be convened by telephone, and suggested an in person hearing be rescheduled. The landlords agent opposed that, wanting the hearing to proceed by telephone, which it did.
The landlord was represented at the hearing by an agent, Ms Clay, the tenant appeared in person.

BACKGROUND

The tenancy ended by way of a 90 day notice issued by the landlord on 19 December 2022, which required that possession return to the landlord on 21 March 2023. The basis for the notice is that the landlord was to commence extensive renovations to the premises.
Ms Clay states that the landlord had made arrangements for an extensive renovation, and had a new kitchen lined up. However Ms Clay states that because the tenant was more than a month over leaving the tenancy (in fact possession was returned less than that), the landlord cancelled that work, and the landlord then decided to re-rent the premises. But I have received no evidence from the landlord on that.
Ultimately the tenant did not leave on that end date and the landlord applied to the Tribunal for a possession order, which was granted on 3 April 2023, giving the landlord immediate possession of the premises.

RELEVANT LEGAL CONSIDERATIONS

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 landlord 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.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears of $1,920.00. Being the rent arrears as of 18 April 2023.
The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect.
The tenants position is that she is not sure what was the end date of the tenancy, because a friend was dealing with the landlord after she had left, but she does agree that she had left some items on the tenancy, including a child’s swing set when she departed the premises.
The landlord states that the tenant was in the property on 15 April, but that is denied by the tenant. The tenant said that she had transitioned to the far North by that stage. I asked the tenant what date she gave the keys her friend, and she advised that was about 4-5 days prior to 15 April. The tenant says that the keys were left in the letter box by her friend, but the tenant is not sure if that is the case or the precise date of that.
On balance I have no reason not to accept the landlords stated date that possession was returned. Certainly the tenant has not convinced me that possession was returned earlier than that.
The landlord has established that the tenant is in arrears to the amount claimed, and that is ordered in full.

WATER RATES

The tenant agrees she owes the amount claimed for water being $436.45. That is ordered by consent.

CLEANING AND RUBBISH REMOVAL

The Residential Tenancies Act 1986 (RTA) requires that at the end of the tenancy, the tenant return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish. Carpet cleaning
The landlord has claimed carpet cleaning costs of $402.50.
The tenant agrees that she should pay for some carpet cleaning, but she considers the amount of the claim is too high. The tenant does not consider the stains were in fact extensive.
The landlord states there were stains throughout the house.
The landlord has provided a letter from the carpet cleaner, Aaron Hastie, in which the tradesman records that there was extensive probable pet urine contamination and staining to the carpets. Importantly the tradesman states: As a result of this damage [the urine], I advised David that it was impossible to remove all the staining and that good result could not be achieved. My recommendation, therefore was that he would need to have the carpet replaced.
Mr Hastie then presented an invoice for carpet cleaning to the sum of $402.50.
I have found this claim difficult. On the one hand I accept that the landlord had the carpets cleaned, but on the other, I consider it is perplexing why the landlord would have proceeded with that work given the expert had advised him that the carpet would require replacement.
By a narrow margin I will make this order given I accept the landlord has incurred the cost, and further given the tenants acknowledgement that she had left some stains on the carpet. General cleaning
The landlord seeks an order for general cleaning costs of $373.75, which related to five hours of cleaning at the premises undertaken by the landlord personally, albeit the invoice presented is from the owners company, ShowerFix Limited. The invoice records the company to be a shower repair company. Ms Clay submitted that the amount claim is lower than a commercial cleaning company would have charged.
The tenant states that the reason she moved out, was because she had been given a 90 day notice terminating the tenancy so that the landlord could undertake extensive renovations, and given that was the case she disputes the necessity to return the premises to a high state of cleanliness. The tenant further states that some of the items shown in the photographs were taken with her, so therefore she states the photographs must have been taken prior to vacating the premises, so the photographs were not consistent with how the premises were left. The tenant said she did leave the premises clean.
I asked Ms Clay when the photographs were taken. Ms Clay confirmed that she did not take the photographs, the owner took them, she was not certain when they were taken.
On balance, I find this claim has not been established. I have no reason not to accept the tenants evidence, that the photographs were taken before she had vacated the premises. The landlord did not attend the hearing and give evidence, and Ms Clay was not in a position to give evidence as to the situation of the premises on the tenants vacation of the premises.
The landlord has not proven that the tenant did not leave the premises other than reasonably clean.
I record for completeness that even if that were not the case, the point made by the tenant, that the landlord had given notice to commence renovations, was a good one. The tenant was required to return the premises reasonably clean, and the Tribunal could take into account that the landlord had advised extensive renovation work was to commence. Ms Clay advised there was a new kitchen lined up. I would not expect that there would be a reasonable expectation to return the premises at a high standard in that circumstance.
This application must be dismissed.

COMPENSATION

With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
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.
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. Carpet replacement
The landlord seeks an order for the payment of $6,577.90 for replacement of the carpet, which the landlord states needed replacement given the carpets could not be cleaned. The landlord states that given the approach of the insurer, they would treat each room as an individual excess.
Ms Clay states that the landlord is doing a full renovation of the house, but at this time the carpet has not been replaced, the landlord cannot afford to replace the carpet at this time. Ms Clay confirmed there is another tenant in the premises, but says that the new tenant was advised the carpet would be replaced when the landlord could. Ms Clay states that a reduced rental has been charged given the state of the tenancy.
Ms Clay believes the carpet was installed in 2018 or 2019.
Ms Craft disputes this claim, she agrees there were some stains, but considers replacement was excessive. Ms Craft states there were some stains on the carpet when she moved in.
I have determined this claim must be dismissed for these reasons: a. The evidence is that the landlord is to undertake extensive renovations. That is the precise reason the landlord terminated the tenancy. Importantly, Parliament amended the law to limit the circumstances a landlord can terminate a tenancy, so a tenant could expect the reasons given to be genuine. In this case the landlord has not convinced me that the carpets would not be replaced in the course of the pending extensive renovations. b. The landlord has not incurred any loss in relation to the carpets. The landlord has not replaced the carpets, so he is not out of pocket. The premises have been re-tenanted, and I can have no confidence that the landlord would replace the carpet during the current tenant’s tenancy, noting I have received no evidence from the landlord on that point. If I were to order carpet replacement costs, when there is no loss for the landlord, that would be a windfall, and the Tribunal would not allow that. c. There is insufficient evidence to show that the current state of the carpets is in reality a problem for a tenant in renting the premises. The landlord has rented the premises. Other than Ms Clay’s statement it was at a reduced rental, I have received no evidence from the landlord or new tenant supporting that. d. The landlord elected to proceed with carpet cleaning (which I have ordered), therefore the landlord has taken the path to clean rather than replace the carpets. I am not persuaded that cleaning was not adequate. e. I have not received any evidence from the landlord as to the state of the carpets at the start tenancy, so as to be satisfied that the replacement is needed because of the actions of the tenant. The tenancy agreement has a property inspection report, but the landlord has not completed that section. I see no reason why the tenants evidence that there was staining present should not be accepted, there is not pre- tenancy inspection or evidence otherwise.
Again the onus is on the landlord to establish his claim, he has not done so, this claim is dismissed. Dismantling a swing
The landlord seeks costs of $130.81 for dismantling a child’s swing set left on the premises. Ms Clay states that Ms Craft wanted to keep that item hence it was dismantled and is still in storage.
The tenant says that she did not know this item was still in storage. The tenant says that she had advised she would collect it, but when she went back to the tenancy the item was gone.
The law is clear, at the end of the tenancy the tenant must remove all her goods, and return the premises clean and tidy. She did not do that as far as the swing is concerned. The tenant is liable for the cost of dismantling and transporting this unit.
However I consider that the claim from the landlord is excessive, given the unit is modest in size. Some compensation should be ordered, which I fix at $50.00. Travel
The landlord seeks costs of $72.40 for travel of 87km from the landlords home, to the tip etc. The landlord seeks reimbursement at the IRD rate.
The tenant considers the claim is excessive.
It can be accepted that at the end of the tenancy, the landlord would need to travel to the tenancy, there is nothing unusual in that. The tenant is not liable for that sort of travel. But I accept that the landlord did need to undertake travel to the tip, and it is fair to have that reimbursed. In the absence of more specific details of days and travel, I will award a nominal level of compensation of $40.00. Labour costs
The landlord has claimed 11.65 of hours to remove and dispose of rubbish.
The tenant considers that there was some rubbish on the premises, which she considers was rubbish, but she considers that the landlord should have made further efforts to get the tenant to remove her belonging. The tenant considers that the landlord should not have dumped her goods as rubbish.
The landlord considers that good efforts were made to get the tenant to remove her belongings.
I am satisfied that the tenant did leave extensive rubbish on the premises, and the landlord should be reimbursed for the work in removing it.
However I consider the amount claimed is excessive. It was the landlord who undertook this work, whether he decided to put it through his business or otherwise. Where a landlord undertakes work personally, it is fair that he is compensated, but a more reasonable rate would be around the $30.00 per hour mark. I have ordered $360.00 compensation for the landlords time, which I consider would be a more reasonable reflection of the work to remove and dump rubbish. Trailer hire
The landlord seeks compensation of $126.50 for the hire of a trailer, but acknowledged that it is the landlords own trailer that was used. I am not persuaded that the landlord has established any loss in relation to trailer use. The absence of a loss means that no order for compensation can be made. Wall heater replacement
The landlord seeks compensation for the replacement of two wall heaters to the sum of $593.98. Ms Clay refers to two Briscoes invoices for two wall heaters.
The tenant accepts that one wall heater was broken, and she says that one other heater was not broken, but had been removed so it could be used in her sons room, the tenant says it just needed to be screwed into the wall.
The photographs show a large crack in one wall heater. I accept that damage occurred during the tenancy, and the tenant has not proven it was not careless or intentional damage.
However the landlord has not established that the second heater was broken during the tenancy.
I will therefore order compensation for one heater only. But I must apply depreciation, given the apparent age of the heater. I consider an order of $100.00 to compensate for the replacement of 1 heater would be a reasonable sum to order. Door lock replacement
The landlord says that the ranch slider had come off the track, but the lever for the door would not work. The landlord seeks orders of $79.22 for the lock replacement.
The tenant says that she always had problems with the lock during the tenancy, and she considers it was a wear and tear issue.
The landlord disputes that the lock was damaged at the start of the tenancy.
I find this claim has not been established. The landlord has not proven that the lock did not require replacement as a result of fair wear and tear (maintenance). This claim is dismissed. Filling fee for earlier order
The landlord seeks an order that the filing fee for the possession order application be paid by the tenant.
The tenant agrees that she has not had the bond released, which I accept means the tenant has not paid this amount.
I accept that while this fee has been previously ordered, the bond has not yet been released, and is still in the Bond Centre, so I will deal with this claim here, and order this amount to be paid in this order.
But I do not order costs for this application, because I do not consider the landlord was wholly or substantially successful in it. Tip fees
The landlord seeks tip fees. The landlord refers to the invoices from the tip $179.73, $103.02 and $91.37.
The tenant disputes that what was taken to the tip was rubbish.
As discussed at the hearing, at the end of the tenancy the obligation is on the tenant to remove her goods. When the tenant fails to do that, then the landlord is entitled to dispose of goods consistently with the landlords obligations and rights under the RTA. I have considered the photographs of the items on the trailer (presumably prior to being tipped), and I cannot see items that the landlord should not have treated as rubbish.
I find the tenant is liable for the disposal costs for the rubbish left on the premises. This claim is ordered in full.

Tenancy Tribunal case 4554450 — Rent arrears at 51C Vincent Street, Howick, Auckland 2014

At a glance

Tenancy Tribunal case 4554450 — Rent arrears at 51C Vincent Street, Howick, Auckland 2014

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

WATER RATES

CLEANING AND RUBBISH REMOVAL

COMPENSATION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

WATER RATES

CLEANING AND RUBBISH REMOVAL

COMPENSATION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions