What was the outcome of Tenancy Tribunal case 4765937?

The tribunal order states: The tenants’ application is dismissed.

How much money was awarded in case 4765937?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4765937?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness.

Where can I read the official tribunal order for case 4765937?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10105295-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4765937?

The tribunal order states: The tenants’ application is dismissed.

How much money was awarded in case 4765937?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4765937?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness.

Where can I read the official tribunal order for case 4765937?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10105295-Tenancy_Tribunal_Order.pdf.

25 Akatea Street, Gonville, Whanganui 4501 Tenancy Tribunal Case 4765937 — Mould & damp

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Reasons

The tenants attended the hearing in person.

The landlord attended the hearing by telephone.

The tenants’ application, as explained by them at the hearing and as contained in their application, is for compensation because they believe that they were unable to move into the property because of its condition at the start of the tenancy. They claim the sum of $3,000.00 being six weeks rent. Standard of proof and evidence

In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, the tenants must establish with evidence that their claim is more likely than not. I consider their claim bearing in mind the standard of proof required.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding the tenants’ claim, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.

Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.

While I may not have referred to all the evidence presented by the parties, they can be assured that it has all been considered.

By accepting the evidence of one person over that of another person, do not infer that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely. Background

The parties entered into a tenancy agreement for a fixed term starting on 4 December 2023 and ending on 4 December 2024.

One of the tenants had inspected the property prior to entering into the tenancy agreement.

When the tenants came to move into the property, they claimed that the premises were not in a reasonable state of cleanliness (see section 45(1)(a) Residential Tenancies Act 1986 [“RTA”]), the property was not provided in a reasonable state of repair (see section 45(1)(b) RTA) and that the premises were not reasonably secure (see section 46 RTA). The tenants also claimed that the landlord did not repair defects brought to its attention (see section 45(1)(b) RTA).

Specifically, the tenants claimed: a. Surfaces in the property were dusty and sticky. b. Some drawers in the kitchen and other cupboards were not clean. c. There were some items of rubbish in and around the property. d. The windows were not clean. e. There were ants in the property. f. There was some mould on curtains. g. The clothes dryer was inoperable as it lacked a door. h. The double gate to the section was not on hinges and could not be opened. i. The back door did not have an operable lock. j. There were items belonging to the landlord in the garage.

The tenants submitted to the Tribunal numerous photographs and copies of correspondence with the landlord. They advised that they did not move into the property because of these issues.

The landlord provided a copy of its inspection report from 4 December 2023. She gave evidence that the property had been commercially cleaned prior to the start of the tenancy and denied that the premises were not in a reasonable state of cleanliness.

Although under no legal obligation to do so, the landlord agreed to release the tenants from their fixed term tenancy and their tenancy ended on 12 January 2024. The tenancy period was 32 days or just over four weeks. This would equate to $2,285.71 in rent. The landlord immediately refunded the bond to the tenants. Discussion and decision

There is no requirement in the RTA that landlords meet with tenants to inspect the property at the start of the tenancy. It may be common, but it is not a legal requirement.

The RTA does not require that the landlord provide the premises in a better state than a reasonable state of cleanliness. Tenants are required to leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) RTA.

There is no definition of either “reasonably clean and tidy" or “reasonable state of cleanliness” in the RTA. This can make it difficult when people have different understandings of what it means. Tribunal and District Court decisions over the years have said that it means: a. To the standard an average reasonable bystander would consider reasonable. b. Not commercially clean, spotless, or to hotel standard. c. The standard will vary according to the age and condition of the premises so the better and newer the premises, the higher the standard. d. There is no requirement that each and every individual item in the premises be left “reasonably” clean and tidy, only an overall obligation in relation to the tenancy premises. e. Tenants and landlords are not required to rigorously clean all walls, ceilings, lightshades, skirtings, window and door sills, plugs and drains, silicone edging, behind fittings and appliances, and the outside of windows and of the house. f. Tenants are not required to leave the property any cleaner than it was at the start of the tenancy.

The tenants were clear that the premises were not in a standard of cleanliness that would meet their requirements.

Having considered the photographic evidence provided by both parties, I am not persuaded on the balance of probabilities that the premises were not provided in a reasonable state of cleanliness considering the age and condition of the premises. While I can sympathise with the tenants that the property did not meet their standards, the landlord’s legal responsibility was to provide the property in a reasonable state of cleanliness. I would reach the same conclusion if the landlord had brought a claim for cleaning against tenants who had vacated the property leaving it in this condition.

The landlord explained that the lock which was missing is from the back door to an area that is a porch. She advised that the door to the laundry which leads into the property had a functioning lock and that there was therefore no requirement that the porch door also have a lock. In summary, she advised that the property was reasonably secure.

The tenants were able to lock up the property. The fact that the rear porch door could not be locked does not make the property unsecure.

The landlord accepted that there was no door on the dryer and that this made it unusable. She denied that there was any issue with the gate. She gave evidence that the prior tenants and the current tenants have used and are using the gate without issue or complaint.

The tenancy agreement expressly provided that there were items stored in the garage by the owner. Their presence was therefore a term of the parties’ agreement.

As discussed at the hearing, for the tenants to succeed in their claim for compensation, they need to establish that the state of the property was such that the contract had been frustrated so that the law would not require them to fulfil their obligations.

I am not satisfied on the balance of probabilities that they have done so. On an objective assessment, the issues faced were either minor or easily remedied. They were not sufficient for the tenants to repudiate the contract for the tenancy.

The tenants have a duty to mitigate any loss they may incur and this would include taking steps to remedy the deficiencies they have claimed. The tenants had several options. They could themselves have cleaned the property to the standard they required, or had a commercial cleaner do the same, and made a claim to the Tribunal for compensation from the landlord and for a work order to complete the repair to the gate and the dryer or any other repairs they believed were necessary. This is not to say that the Tribunal would have made any award, only that this was a reasonable path for the tenants to take if they wished to continue with the tenancy.

If the tenants did not wish to continue with their tenancy, they could also have made an application under section 66 RTA to reduce their fixed term tenancy. The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly and it is only in limited circumstances that a court or tribunal will interfere with it. There is a high threshold to be met before the Tribunal will reduce the term. In particular, the applicant will need to establish that: a. There has been a change in their circumstances. b. The change was unforeseen. c. The unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced. d. The severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.

It would have been difficult for the tenants’ application to succeed on the grounds advanced in their application. Specifically, all the tenants’ issues were capable of remedy by the landlord and cannot be said to have given rise to “severe hardship” for the tenants.

To be successful an applicant under section 66 RTA must establish that their circumstances have changed during the tenancy. Section 66 does not apply where the circumstances existed at the outset of the tenancy but were not discovered until after the tenancy commenced. Here, the circumstances complained of were present at the start of the tenancy. There had been no change of circumstances during the tenancy.

However, as noted, the landlord agreed to release the tenants from their fixed term tenancy and does not appear to have charged the tenants any amount in reasonable compensation for doing so. See section 66(2) RTA. Summary

I am not satisfied on the balance of probabilities that the property was not in a reasonable state of cleanliness and repair at the start of the tenancy given the age of the property; nor that the matters complained of by the tenants in their application were so serious and incapable of remedy that the tenancy would have been terminated on the basis that the contract was frustrated, nor of such seriousness that the tenants could not live in the property; nor on the basis that an application under section 66 RTA would have been successful.

The tenants have been granted by the landlords what they most wanted: release from their fixed term contract. As they have not made out a basis for terminating their tenancy based on breaches by the landlord, it is not appropriate they be awarded compensation.

The tenants’ claims are dismissed.