Published tribunal order
Tenancy Tribunal case 4592029 — Cleanliness at 414 Scenic Drive, Waiatarua, Auckland 0612
Decided 17 Nov 2023 · Published 17 Nov 2023 · Application 4592029
Landlord favoured
- Cleanliness
Order
- Paulette Jones and Samatha Jones-Padilla must pay Ben Tauber $954.24 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $3,800.00 (6412716-017) immediately apportioned as follows: Ben Tauber: $980.34 Paulette Jones and Samantha Jones- Padilla: $2,819.66
- The claims are allowed as set out in this order and
Reasons
. All other claims are dismissed. DescriptionLandlordTenant Cleaning$250.00 Fridge removal$709.90 Filing fee reimbursement$20.44 Total award$980.34 Bond$980.34$2,819.66
REASONS:
- The hearing was conducted remotely by audio call on Teams, yesterday on 16 November 2023.
- Shannon Anstis, a property manager from Ray White Austar Property, represented the landlord. The tenants attended for themselves.
- The landlord has applied for compensation, payment over of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenants sought compensation. Background
- The tenancy began in October 2021 and ended on 27 March 2023.
- The premises has a well-designed modern house set in bush in the Waitakere ranges between Titirangi and Piha.
- The tenants and their family enjoyed the premises and looked after it well.
- Unfortunately, on 27 January 2023 during Auckland Anniversary Weekend, historically high downpours caused extensive damage to Auckland West Coast area. A state of emergency was declared for the Auckland region. Roads were closed and many power lines were downed. The premises was left without power and because it had no power there was no water because the premises was on tank water and the water pump needed electricity.
- The premises remained uninhabitable for the rest of the tenancy because power was never restored and the tenants could not live in the premises.
- Yesterday, the landlord added to his claim by seeking reimbursement for the cost of replacing the premises’ fridge and for the cost or repairing a pole in the carport.
- The tenants responded by adding a new claim that the landlord had breached the Healthy Homes Standards in respect to insulation and heating. However, at the hearing today the tenants decided to pursue that claim.
- The tenants’ original claim was for the many costs they had incurred as a result of being left suddenly homeless. For instance, they had to pay for Airbnb accommodation, emergency accommodation for their dogs, and for their moving costs. After discussion, the tenants did not pursue that claim. It does seem to me that their regrettable losses were due to the disaster rather than any breach by the landlord. In that regard, although the tenancy continued until 27 March 2023, the landlord refunded the tenants’ rent from 28 January to the end of the tenancy.
- One of the main issues was whether the tenants should have to compensate the landlord for his fridge that was ruined by its contents spoiling over the months that the premises did not have power.
- Consequently, the issues for determination are: a. Did the tenants fail to leave the premises reasonably clean and tidy, or remove their rubbish? b. Are the tenants liable for the landlords’ losses from the fridge? c. Did the tenants carelessly or intentionally damage the premises?
Did the tenants comply with their end of tenancy obligations?
Legal principles
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish. 1 The landlord has an equivalent duty to provide the premises to the tenant in a reasonable state of cleanliness at the beginning of the tenancy. 2
- “Reasonably clean” means clean to the standard a reasonable and fair bystander. A “reasonable” state of cleanliness does not mean spotless, immaculate, or commercially clean, or hotel or motel standard. A landlord may have some work to get the premises up to standard for a new tenant and cannot claim that cost from the tenant.
- A tenant does not have to leave the premises cleaner and tidier than at the start of the tenancy. A claim for cleaning may be dismissed if there is no proof of the premises’ condition at the start of the tenancy. 3
- The onus for establishing the claim, sits with the person making it on the balance of probabilities. In this case, the landlord is seeking to recover cleaning costs. Therefore, the landlord must prove that the tenant did not leave the premises reasonably clean and tidy. 1 Section 40(1(e)(ii)-(v) of the Residential Tenancies Act 1986 (RTA). 2 RTA, s s 45(1)(a) of the RTA. 3 Stewart Benson Residential Tenancy Law in New Zealand (Thomson Reuters, Wellington, 2018) at
- 12. Discussion
- The landlord has not provided any pre-tenancy photographs. However, Ms Anstis was the letting agent. She conducted FaceTime viewings of the premises at the time of letting (it was during COVID-19 lockdowns), and she confidently recalls that the premises was reasonably clean and tidy at the beginning of the tenancy.
- The tenants say however they had to clean many surfaces and cobwebs away at the beginning of the tenancy. That is tenable. The premises were likely reasonably clean and tidy, but they floor area is quite vast, so there may well have been cobwebs and some areas of superficial uncleanliness.
- I have carefully gone through the property manager’s photographs taken about two weeks after the tenancy ended.
- The photographs show dead leaves scattered through several rooms. The tenants explained, they left the premises thinking they would move back in within a matter of days. However, because the power could not be restored, they could not live there. Consequently, their many indoor pot plants were left unattended. The plants lost their leaves through lack of watering, and they were left scattered throughout the house.
- When the tenants returned to move their belongings out on 26 and 27 March 2023, there was still no power and no water so the tenants could not use a plug- in vacuum cleaner or ordinary cleaning products. Moreover, by the time the movers had gotten out of their way, it was 8:00PM. Without any electrical lighting they could not see well enough to clean. Consequently, the premises were returned to the landlord fundamentally as they had been before the rainstorms came in January.
- Aside from superficial uncleanliness and untidiness such as the pot plant leaves, some movers’ cardboard box detritus and the like, some unwanted small objects, some of the surfaces having a slightly dull patina, laundry lint and similar in the laundry, and a couple of minor dirt marks on the walls, the premises appear to be quite clean. Ms Jones-Padilla confessed to being “OCD” about cleaning, and the photographs reflect that the tenants probably kept the premises immaculately clean prior to the downpours. It is just that the tenants did not do a final clean to remove the leaves, vacuum the carpet, and clean the house’s many surfaces.
- I have reviewed all of the relevant evidence including the photographs, an invoice that includes cleaning, and an assessor’s report. Conclusion
- The tenants did not leave the premises reasonably clean and tidy and did not remove all rubbish.
- I find that $250.00 is an appropriate amount to order for cleaning. That takes account of the tenants needing to do some minor cleaning at the beginning of the tenancy and assesses the deficit in cleaning that needed to be done to bring the premises up to the standard of being reasonably clean.
Are the tenants liable to the landlord for damage to the fridge?
- The landlord’s and the tenants’ fridges and freezers were ruined by rotting food due to the food not being removed after these appliances stopped working due to the power outage.
- The landlord’s fridge is a chattel rather than a part of the premises.
- The tenants stayed in the premises for two nights after the floods. They left the premises on 29 January and then came back on 30 January. They had the use of a generator but gave that to others more in need of it and left again on 31 January 2023.
- The tenants thought they would return much sooner than they actually did due to access problems and the fact the power was still lost. By the time the tenants did return, they did not want to clean the fridge out because they might have gotten sick from the pathogens from the rotten food.
- The question arises are the tenants whose failure to remove the food caused the damage to the fridge liable for the damage or should the landlord bear the cost? Both the tenants and the landlord were victims of the natural disaster, so the question of liability is not necessarily related to anyone being at fault.
- I find it is the tenants who should bear the loss. The fridge was under their watch at the time. It was the tenants use of the fridge that caused the damage. If they had not been using the fridge, it would not have been damaged.
- I turn to assessing compensation for the landlord’s losses.
- The age of the fridge was not clear. The tenants thought it was about 10 years old. The fridge was in the premises when the landlord bought the property in 2020. The landlord thinks the fridge is about five years old. To coin Ms Anstis’s phrase, these were however just “educated guesses”.
- The tenants also say the fridge was leaking even before the Anniversary Weekend deluges.
- The fridge looks in only fair condition in the photographs, but of course it had been damaged by having food left in it when it was not working.
- On reflection, I consider the fridge is more likely to be closer to 10 years old than five. It needed to be repaired or replaced. I assess the depreciated value of the fridge on the basis of a likely useful life of 10 years. The approximate replacement cost is $1,600.00.
- Therefore, I order the tenants to pay $160.00 for the lost value of the fridge. The tenants are also liable for the shipping cost of the new fridge of $195.00 and the cost of removing the old fridge of $354.90.
- The total amount of compensation ordered for the damage to the fridge is $709.90.
Are the tenants liable for damage to the premises?
- The landlord claims the tenants damaged the front door and a carport post. Legal principles
- 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. 4
- 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). 5
- The test for ascertaining carelessness is whether the tenants or the other occupants were reasonably prudent in their actions pertaining to the events that caused the damage.
- 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. 6 4 RTA, ss 40(2)(a), 41 and 49B. 5 RTA, s 49B(3)(a). 6 RTA, s 49B(1).
- 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. The front door
- Someone damaged the front door and a slide bolt, perhaps by kicking it in. The landlord suspects the tenants locked themselves out and had to break in to gain access. The tenants deny doing anything of the sort. They say the door had no signs of damage when they moved out on 27 March 2023.
- Ms Anstis says the landlord went to the premises a few days after the tenants had moved out and saw the damage.
- The tenants say they know they did not damage the door. The point out that it was well known at the time that criminals were targeting the area to take advantage of properties having to be left unoccupied.
- I am not satisfied on the balance of probabilities that the door damage occurred during the tenancy. The tenants took good care of the premises and there is nothing to suggest that they would force the door open and then dishonestly deny doing so. The photographs of the damage were taken after the tenancy ended. It is more likely that the damage occurred after the tenancy ended. Carport pole damage
- The landlord did not specify the allegation of damage to a carport pole until Ms Anstis sent an email to the Tribunal to that effect yesterday.
- No photographs of the alleged damage were produced. It is not possible to assess the nature of damage or its probable causes.
- There is an invoice dated 1 April 2023, which has Ms Anstis’s name on it. The date is dubious because it appears to pre-date Ms Anstis’s reinvolvement in the tenancy.
- The tenants deny damaging the pole.
- The landlord did not attend the hearing to give evidence on the matter, so the only evidence of the damage is hearsay.
- There is a lack of cogent evidence that the alleged damage occurred during the tenancy. I am not satisfied on the balance of probabilities that it did. Filing fee
- The landlord has substantially succeeded in the application. It is appropriate to order the tenants to reimburse him for the cost of the filing fee.