What was the outcome of Tenancy Tribunal case 4731550?

The tribunal order states: Robert Selwyn Lendrum to pay Rowanne Natalie Bowden $1,198.56 from the

How much money was awarded in case 4731550?

Cleaning: $269.60 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $908.52 awarded to landlord

What type of tenancy dispute was case 4731550?

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

Where can I read the official tribunal order for case 4731550?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9938379-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4731550?

The tribunal order states: Robert Selwyn Lendrum to pay Rowanne Natalie Bowden $1,198.56 from the

How much money was awarded in case 4731550?

Cleaning: $269.60 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $908.52 awarded to landlord

What type of tenancy dispute was case 4731550?

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

Where can I read the official tribunal order for case 4731550?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9938379-Tenancy_Tribunal_Order.pdf.

4 Wakelin Street, Carterton, Carterton 5713 Tenancy Tribunal Case 4731550 — Rent arrears

Claims and awards in Tenancy Tribunal application 4731550 — net $1,198.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as of end of tenancy	$908.52	Rent arrears as of end of tenancy
Carpet Cleaning	$269.60	Carpet Cleaning
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,198.56
Bond	$2,120.00
Total payable by Tenant to Landlord	$1,198.56

Claims and awards in Tenancy Tribunal application 4731550 — net $1,198.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as of end of tenancy	$908.52	Rent arrears as of end of tenancy
Carpet Cleaning	$269.60	Carpet Cleaning
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,198.56
Bond	$2,120.00
Total payable by Tenant to Landlord	$1,198.56

Order

Robert Selwyn Lendrum to pay Rowanne Natalie Bowden $1,198.56 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,120.00 (5209009-005) immediately apportioned as follows: Rowanne Natalie Bowden: $1,198.56 Robert Selwyn Lendrum: $921.44

Reasons

The Tribunal must consider an application filed by the landlord. The tenancy has ended, what remains is a dispute around compensation to be paid to the landlord at the end of the tenancy.
Both parties appeared at the hearing today, and both parties had support people assist them.

BACKGROUND

The background in this claim is now extensive, and the relationship between the landlord and tenants, can only be described as fractious with frequent conflict that has clearly been troubling for both parties.
The tenancy agreement records the landlord has Rowanne Bowden, and the two co-tenants as Robert Searle Lendrum and Kirsty Lendrum, although the application is only filed against Mr Lendrum. The tenancy is a periodic tenancy commencing on 28 November 2022.
It is also relevant to note that Ms Lendrum is wheelchair bound, and is supported by ACC, which funded a range of modifications to the house.
The Tribunal has previously considered applications in relation to the Tenancy. I will not set those out in detail here, but note for example an order from Adjudicator Baker on 24 August 2023 which declined to order termination of the tenancy because of claimed anti-social behaviour, and then a further order from 3 November 2023, where Ms Baker considered a claim from the tenant for compensation and exemplary damages for a breach of the landlords obligations around the Healthy Homes Standards and maintenance, that claim was also unsuccessful.
Ultimately the tenancy ended following notice from the tenants, I will discuss that further below.

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), 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 at the end of the tenancy. The landlords position is that the tenant was required to give 28 days’ notice to end the tenancy, but in this case the tenants notice was short. The landlord seeks rent arrears to the end of that 28 day notice period.
The tenants position is that it was the landlords who wanted the tenants out of the premises, and agreed that they would leave and find somewhere else to live, so the tenants say they did just what the landlord had requested. The tenants were firm in their evidence that the landlord advised they could break the lease when they wanted to. The tenants consider that the approach the landlord has taken toward them has been unreasonable.
In response the landlord said she was always agreeable that she would ‘break the lease’. The landlord states there is no written material of her agreeing to a lesser notice period, and states that Ms Baker had previously advised the notice period would be 28 days.
At the hearing today the landlord stated that there was a fixed term tenancy, but based on the tenancy agreement I have been provided, that is not the case. The tenancy agreement clearly records a periodic tenancy, which means that the tenants can end in the tenancy by giving the landlord 28 days’ notice. Therefore the minimum notice period would ordinarily be 28 days, but there is no reason the tenants and landlords could not agree to a lesser notice period. Section 11 of the RTA confirms that a tenant cannot agree to give up a right found in the Act that would benefit them, but that the landlord is able to.
In this case I do question whether the landlord incorrectly understood the situation around the ending the tenancy, given the reference to the tenancy being a fixed term tenancy which could not be terminated by notice, and being agreeable to break the lease. With a periodic tenancy it is of no moment whether the landlord agrees to end the tenancy, if the tenant gives a valid notice, then the tenancy comes to an end following the notice period.
In this case the tenants gave notice on 3 November 2023, which was notice for ending the tenancy one week later, which as set out above would not comply with the requirements in the RTA. I am not persuaded that there is sufficient evidence before the Tribunal to conclude that the landlord has given a prior consent to the tenants ending the tenancy with notice less than 28 days as the tenants proposed.
However, the tenancy file includes an email from 3 November 2023, where the landlord advised in part that: The shortest notice period we would agree to is 21 days, thus making Friday 24 th November the last day of the tenancy.
Overall, I conclude that the landlord’s email must be taken as consent to a 21 day notice period. While it is less than the minimum found in the RTA, as I have explained above the landlord can agree to a truncated notice period, there is no problem with that. I therefore find that the tenants are liable for rent payments until Friday, 24 November 2023.
The tenants are therefore short rent payments between 13 November 2023 and 24 November 2023, which is 12 days. The daily rental is $75.71, meaning the rent arrears are $908.52, and that is ordered.

LOCK AND KEY REPLACEMENT

The landlord has claimed compensation for lock and key replacement.
The landlord agrees that the tenants have returned the keys at the end of the tenancy, but considers that given the conflict, and concerns she has, that it would be reasonable to change the locks.
Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy the tenant must “return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for use of the tenant”.
As I explained at the hearing today, this claim must be dismissed. The obligation on the tenant is to return the keys to the landlord at the end of the tenancy, and the tenant has complied with that. Whether the landlord wishes to replace the locks beyond that, is a decision for the landlord to make, but that does not mean the tenant would be liable for the costs of that lock and key replacement. The tenants have complied with their obligations in law as it relates to the locks, and therefore no order can be made for the locksmith costs.

PLUMBING CHARGES

The landlord states that the tenant requested that the landlord arrange for a plumber because the drains would block. The landlord states that when the plumber arrived as arranged, the tenant had put up barriers to the back of the property so the plumber could not access the premises. The landlord submits that because the tenant had denied access, the tenant should play for the plumbers cost.
The tenant states that he had sent an email to the landlord to advise that it was not a suitable time to come to the property for work. Further the tenant states that the barrier at the back of the property was not to stop the plumber coming to the premises, but to keep in their dog. The tenant said it was not a blocked drain but a water leak. The tenant considers that the work the plumber wanted to do was not necessary, all he needed to do was to check the water meter. The tenant considers that the statement from the plumber (below) has been fabricated. The tenant states that they were not present when the plumber arrived, but that they did not want the plumber there without them present because their dog was on site, which would present safety issues for the plumber.
The plumber did not attend the hearing to give evidence, the only evidence I have is from information contained in a tax invoice, and later email. The tax invoice records the following: We have been called for a suspected blocked drain. Once on site we were not able to get tho the rear of the house and we were unable to get the drain accesses. At the request of the land lord we have replaced the hose tap at the front of the property. We checked the water meter and there was no ideation of water flow so we believe there is not water leaks as the address [sic]
It is not clear to me whether the description found in the invoice was written by the plumber who attended the premises, or a third-party in the office.
The email is from the office administrator at the plumbing firm, and dated 5 September 2023, stating: Further to your conversation with Andrew, due to the aggressive nature of your tenant... we are unable to provide you with plumbing or electrical services ...at this time. The tenant the poses a risk to our staff and we do not believe we can reasonably send people there safely. He has previously approached a staff member at the end of the job when they were outside in the vehicle and was very threatening.
As I have set out above, the onus sits with the person making the claim, that means it is the landlord who must establish a breach of the part of the tenant, in order to have compensation awarded. In this case I find the landlord has not established a breach for these reasons. a. The evidence fall short of establishing that the tenant had unreasonably blocked the plumber accessing the back of the dwelling. The evidence from the tenants is that there’s certainly was a barricade at the back of the property, but it was to keep in their dog. I have received no evidence from the plumber to the contrary, and I have no reason not to accept the tenant’s statement in that regard. b. The invoice from the plumber records that he also undertook other work such as a tap replacement for the landlord, and that would normally be a cost that would sit with the landlord. To put it another way, there will be no basis for the tenants to pay the invoice, when the landlord undertook work for the landlord at the same time. c. Finally, the fact of the plumber being unable to access the back of the premises may not be particularly relevant. The invoice records that the plumber was able to determine that there was no water leak, which the tenant states was the concern they had.
I found this claim has not been established.

CARPET CLEANING

The landlord seeks costs for carpet cleaning. The landlord states that the carpet was smelly and referred to the tenant’s dog. The landlord advised that the carpet is brown, and she otherwise does not have photographs showing the state of the carpet, but was firm in her assessment that the carpet smelled of dogs and cannabis and needed commercial cleaning. The landlord states that there were complaints from tradespeople about the smell.
The tenant’s consider that the situation has arisen because the landlord had agreed to someone in a wheelchair living in the premises. The tenants note that when the chair came inside the chair would need to come over mud and gravel, and that would result in contamination on the carpets. The tenants say they vacuumed the premises to get the premises to a standard they considered would be acceptable. The tenants consider that any dog odours would have come in from the landing, or otherwise carried in from the chair. The tenants also consider that this would have been covered in the ACC remediation work.
The landlord states that ACC did not pay for carpet cleaning or carpet replacement.
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, and then to determine whether the premises would be reasonably clean.
There seems to be agreement from both parties that the carpet was dirty, although for slightly different reasons. The landlord considered that the carpet had an unpleasant odour, whereas the tenants considered that the carpet would have been affected by the wheelchair. To be fair to the landlord, it is difficult to establish claims relating to odour other than by oral evidence from a person who can smell the carpet, such as the landlord has in this case. These sorts of applications cannot be established by photographs, smell is of course subjective. But again the tenants have accepted that there were impacts to the carpet from the wheelchair.
The tenant submitted that around half of the contribution to the state of the carpet would have been from the landlord agreeing to have someone living in the property with a wheelchair. In fact, the landlord was not able to discriminate against the tenants, based on the fact that one of the tenants had a disability. If the landlord had done so, the landlord would have engaged in lawful discrimination, and that is prohibited in the RTA.
I cannot see any reason why the landlord should not have an expectation that the carpet would be returned reasonably clean at the end of the tenancy, the level of reasonableness not being any different for a tenant in a wheelchair, compared with a tenant who did not have a wheelchair.
The tenants were also concerned that ACC had funded remediation which would have involved the carpet, but there is no evidence of that. The landlord has provided a tax invoice from 11 December 2023, which supports the landlord as having paid for the carpet cleaning cost, and there is no evidence that ACC has reimbursed that otherwise.
On the evidence available I am satisfied that the premises were not returned reasonably clean to the landlord, and therefore the cost incurred by the landlord for the carpet cleaning is a cost that must be paid by the tenants.

FILING FEE

The applicant has been mostly successful in their claim before the Tribunal. I find it is reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal, which is $20.44.

Tenancy Tribunal case 4731550 — Rent arrears at 4 Wakelin Street, Carterton, Carterton 5713

At a glance

Tenancy Tribunal case 4731550 — Rent arrears at 4 Wakelin Street, Carterton, Carterton 5713

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

LOCK AND KEY REPLACEMENT

PLUMBING CHARGES

CARPET CLEANING

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

LOCK AND KEY REPLACEMENT

PLUMBING CHARGES

CARPET CLEANING

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions