Published tribunal order
Tenancy Tribunal case 4648513 — Cleanliness at 28 Fitzgerald Street, Whitecliffs, RD 1, Glentunnel 7673
Decided 17 Oct 2023 · Published 17 Oct 2023 · Application 4648513
Dismissed
- Cleanliness
- Property damage
Order
- An application for suppression has been made in this case by the tenant but no suppression order is made.
- The tenant must carry out the following work to the premises, which must be completed by 1 November 2023: a. Remove the stains from the carpets in the two affected bedrooms.
- As an alternative to compliance with Order 2, the tenant must pay the landlord $200.00 immediately after 1 November 2023.
- If the tenant fails to comply with either Order 2 or 3 above, then the landlord may undertake the work and charge the tenant the costs of this work up to $200.00. These costs may be treated as rent in arrears and enforced accordingly.
- The application for an order terminating the tenancy is dismissed.
- The tenant’s application is dismissed.
Reasons
- Both parties attended the hearing, the tenant by phone, the landlord in person.
- The landlord claims that the tenant has stained the carpets in 2 bedrooms and has failed to have the stains removed as she said she would. The landlord wants the problem fixed.
- The landlord has applied for an order terminating the tenancy should the tenant not comply. Relevant statutory provisions
- Under section 40(1)(a)-(e), Residential Tenancies Act 1986 (RTA), a tenant has specific obligations in relation to the tenancy premises.
- Where the Tribunal finds that the tenant has failed to comply with any of these obligations, where appropriate it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order.
- A work order may also authorise the landlord to undertake the work and charge the tenant the costs of doing the work if the tenant should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be treated as rent in arrears and enforced accordingly. See sections 78(2AAB) and 78(2AAC)(a) RTA.
Has the tenant failed to comply with their obligations?
- The tenant accepts that the carpets have been stained in the two bedrooms in question, one the main bedroom the other a child’s bedroom.
- The landlord produced video evidence taken just before the tenancy started and photos from inspections on 19 March 2023 and 30 September 2023.
- The tenant says she has tried to have a carpet cleaning company come to assess what is required and give a quote, but the company would not respond to her.
- The landlord produced evidence from her insurer that her period of insurance ends on 3 November 2023. Therefore, the carpet stains must be treated before then to determine whether the insurer will accept a claim for carpet replacement if that is required.
- The tenant says she cannot afford the cost of professional carpet stain removal. She wants the money to be taken from her bond at the end of the tenancy.
- The carpet staining is damage to the carpet, a breach by the tenant of her responsibilities under section 40(2)(a) RTA. But it is a breach capable of remedy.
- The Tribunal would not terminate a tenancy for a breach of this nature. It will however make a work order.
- The tenant needs to understand that the landlord must comply with her insurer’s requirements to protect her position. That means the carpet stains must be treated before 3 November 2023 (the period of insurance) since if the stains cannot be removed the insurer might accept a claim for carpet replacement.
- If the carpet is replaced as a consequence of something that happened during the period of insurance, the tenant’s potential liability would be limited to the amount of the insurance excess ($500.00).
- If the stains are not treated during the period of insurance the insurer might regard the landlord as not insured for the event. That increases the financial risk to the tenant.
- The landlord has established a case for a work order to be made now.
- I have made a work order for the tenant to treat the carpet stains to try and remove them by 1 November 2023, 2 days before the expiry of the landlord’s period of insurance.
- The Tribunal need not direct how that should be done. Provided the tenant removes the stains (if they can be removed) that will satisfy the order. But if the tenant does nothing the consequential money order and order authorising the landlord to do the work will come into effect.
- The tenant’s application was a defence to the landlord’s application. For completeness, I dismiss the tenant’s application. Result
- The tenant must remove the two carpet stains (if they can be removed) by 1 November 2023. If not, the consequential orders will come into effect after that.
- The landlord’s application for termination of the tenancy is dismissed.
- The tenant’s application is dismissed. Name suppression
- The landlord does not seek a name suppression order. The tenant sought a name suppression order but is not entitled to an order because her defence to the application is not successful – see section 95A RTA.