What was the outcome of Tenancy Tribunal case 4845887?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4845887?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4845887?

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

Where can I read the official tribunal order for case 4845887?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10481564-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4845887?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4845887?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4845887?

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

Where can I read the official tribunal order for case 4845887?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10481564-Tenancy_Tribunal_Order.pdf.

51 Poland Street, Waikino, Waihi 3682 Tenancy Tribunal Case 4845887 — Rent arrears

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
A partially completed unsigned written agreement using the standard form provided by Tenancy Services dated 16 May 2023 has been produced. There is no written tenancy agreement. Having heard from the parties I am satisfied that on 02 June 2023 they entered into a verbal periodic tenancy agreement. The tenant had exclusive possession of the property in return for rent. The property is a colonial bungalow. Both parties were therefore bound by the provision of the Residential Tenancies Act 1986 (The “Act”). The landlord was overseas at the material time and states that a family member took photographs and a video of the property and handed the keys to the tenant.
Having heard from the parties I am satisfied that on 02 June 2023 they entered into a verbal periodic tenancy agreement. The tenant had exclusive possession of the property in return for rent. The property is a colonial bungalow circa 1905. Both parties were therefore bound by the provision of the Residential Tenancies Act 1986 (The “Act”). The landlord was overseas at the material time and states that her soon took photographs and a video of the property and handed the keys to the tenant.
On 25 March 2024, the landlord filed an application with the Tribunal. Subsequent to filing the application the tenant vacated the property on 22 May 2024. The claims before the Tribunal are that the tenant owes rent arrears, has failed to leave the property in a reasonably clean and tidy condition, including the grounds, and to remove all rubbish, is responsible for damage that is more than fair wear and tear, and is responsible for missing chattels.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the Act. Rent arrears.
The landlord claims that the tenant owes rent arrears of $2,700.00. The rent at the commencement of the tenancy was $540.00 per week. A rent summary has been produced. It shows all of the rent payments made. The rent payments were made fortnightly. In March 2024, the landlord gave the tenant a “verbal” 90-day notice. This was then followed by a written notice dated 12 March 2024. The notice was on the grounds that the landlord wished to return and reside in the property. The tenant gave their own notice and the tenancy ended on 22 May 2024. The landlord states that having given their notice the tenant ceased to pay rent claiming to be in credit, something the landlord denies.
The tenant states that at the commencement of the tenancy they believed that their tenancy was going to be for a period of some 6-7 years. Shortly after the commencement of the tenancy the landlord advised that because of financial pressure they may have to sell the property. The parties appear to have known each other prior to the tenancy. The tenant stated to assist the landlord and avoid ending the tenancy prematurely, they offered to pay an extra $60.00 a week increasing the rent to $600.00 per week, paid fortnightly. The rent summary shows that this increase took affect from 28 June 2023. The tenant states that when the landlord gave notice, they decided to reduce the rent back to $540.00 and then withheld a couple of payment on the basis that they were in a rent credit.
The landlord states having offered to increase the rent, which they accepted, that the tenant should be liable for that rent until the end of the tenancy.
At the commencement of the tenancy parties are free to agree the rent. Once this been settled and the agreement entered, section 24 of the Act provides that rent may not be increased by the landlord within 12 months after the date on which the tenancy commenced. The increase in this case was not one permitted by the Act. While there may have been an offer made by the tenant and acceptance on the part of the landlord, I am not satisfied that there was any meeting of the minds that the rent increase was to legally bind the parties as an increase from $540.00 to $600.00 per week. The rent therefore remained $540.00 for the tenancy. Having calculated the rent due, and that paid by the tenant, the rent not in was not in arrears at the end of the tenancy, and the claim is dismissed.
Failing to leave the property in a reasonable clean and tidy condition and remove all rubbish.
The landlord claims that the tenant has failed to leave the property reasonably clean and tidy and remove all rubbish. The landlord state they have spent three weeks cleaning and removing rubbish which they estimate to be valued at $2,000.00. No formal record of time has been kept or produced. The landlord has produced an invoice for skip hire for $560.00. There are limited photographs taken showing the property at the commencement and the end of the tenancy. The landlord has been unable to produce the video taken by the family member.
The tenant disputes that some of the photographs purporting to show the property at the end of the tenant were in fact taken at the end stating that some, in particular those showing items of belonging to the tenant, were taken at the end. The tenant states that the landlord returned and resided with the tenant on 10 March 2024 and remained by a fortnight and that most of the photographs had been taken then. The tenant also states that the landlord completed cleaning themselves before the end of the tenancy. The landlord accepts returning to and residing at the address, and doing some cleaning, but denies that some of the photographs were not taken at the end of the tenancy. The tenant has provided an invoice for a skip bin that they hired in February 2024, and a photograph showing the skip bin full of rubbish. The tenant states that the previous tenant had left property which had not been removed prior to their tenancy.
Whether a tenant has failed to meet their obligations under the Act to leave the property in a reasonably clean, and has removed all rubbish, involves an objective assessment. What is reasonably clean and tidy is not defined in the Act. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. The Tribunal must evaluate the evidence available. The best evidence are photographs, on which an objective assessment can be made, followed by inspection reports, checklists, and then the oral testimony of the parties.
The photographs taken showing the property at the end of the tenancy are limited and challenged by the tenant. There are some doubts as to the condition of the property at the commencement of the tenancy. Having heard from the parties and considered the evidence produced I am not satisfied to the required standard that the tenant has failed in their obligations to leave the property in a reasonably clean condition and remove all rubbish. The claim is dismissed. Damage
The landlord claims that the glass door panel in the wood burner, a window in a lounge room window, a shower slider bracket, floor in the bathroom near the shower, and toilet seat were damaged during the tenancy and that the damage is more than fair wear and tear.
There is no pre tenancy checklist. There is no evidence showing the condition of these damaged items at the commencement of the tenancy.
To succeed with a claim for damage the landlord must prove that damage 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. See sections 40(2)(a), 41 and 49B of the Act.
Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
The photograph of the glass panel in the wood burner has been taken on about March 2024, and shows a vertical crack down the centre. The landlord states that they arranged to replace the glass at a cost of $300.00. At the end of the tenancy the landlord noted that the glass was loose and arranged for it to be refixed at a cost of $80.00.
The tenant states that the wood burner is old. This is accepted by the landlord. The tenant also points out that the frame of the burner is cracked. The tenant states that the glass broke and has no explanation as to how but states that due to the age and condition of the wood burner it was likely age-related fair wear and tear. The tenant state that after the glass was repaired it became lose suggesting that the repair had been substandard.
While I am satisfied that the damage to the wood burner has occurred during the tenancy, I am not satisfied that it was more than age related fair wear and tear. The claim is dismissed.
The photograph of the window in the lounge shows that the lower left-hand pane has been covered by tape. The window is appearing to be an original feature. The landlord has produced an invoice for $529.00 to repair the window. The landlord states that they could not initially get a glazier to visit the property.
The tenant denies liability stating that the putty fixing the panes has degraded and as a result the panes in the window are all lose, putting them at risk of cracking. The tenant also stated that the window was stiff and difficult to open and close. The tenant is unsure as to when the damage may have occurred but states that it is likely due to age related fair wear and tear.
The photograph produced by the landlord appears to support the tenant’s submission. The tape applied appears to cover not only the crack but also the edge of the pane where it meets the wooden frame, indicating that the pane is in fact lose. The photograph generally shows the window as having wear and tear commensurate with its age. While I am satisfied that the damage has likely occurred during the tenancy, I am not satisfied that it is necessarily more than age related fair wear and tear. The claim is dismissed.
The photograph of the shower fixture shows that the clamp or holder into which the hand piece rests is damaged and has been taped up. The tenant states that the shower fixture was not new at the start of the tenancy and had been well used. The landlord accepted that the shower fixture was 2 or 3 years old. Showers in rental properties are typically high use areas. Shower fixtures, such as the one shown in the photograph, do not have infinite lifespans. While the shower fixture was likely damaged during the tenancy, on the evidence, I am not satisfied that it is more than fair wear and tear. The claim is dismissed.
The photograph of the floor in the shower shows a hole just outside the lip of the shower. The landlord states that the area was not damaged at the commencement of the tenancy, that they had purchased the property in 2019 and that there had been no issues raised in the building report. The landlord stated that the contractor engaged to fix the floor had reported that there was nothing inherently wrong with the floor and that the damage may have occurred because water had been allowed to sit on the floor for prolonged periods.
The tenant states at the commencement of the tenancy the floor in the bathroom, which is made of particle board, which they state is not suitable to wet use in wet areas, had high and low points suggesting that it had already been affected by water. The tenant states that at the start of the tenancy then had installed a shower curtain suggesting that it may have been used by the previous tenant without one. The tenant states that while stepping out of the shower on one occasion their foot and simply gone through the floor. The tenant states that they raised the matter with the landlord, which the landlord denies.
There are no photographs showing the bathroom or bathroom floor at the commencement of the tenancy. There is no written report from the contractor that there was nothing inherently wrong with the floor. Although I am satisfied that the damage has occurred during the tenancy, I am not satisfied that it is more than age related fair wear and tear. The claim is dismissed.
The photograph of the toilet seat shows that one of the fastenings securing the seat has become lose. The landlord states that it was refastened. There is no evidence as to the condition of the toilet seat and the commencement of the tenancy. The tenant states that the toilet was used as intended. I am not satisfied that any damage is more than fair wear and tear. The claim is dismissed. Chattels
The landlord has provided a list of 17 items which they state were provided as chattels not accounted for by the tenant at the end of the tenancy.
Under section 40(1)(v) of the Act a tenant must leave all chattels provided by the landlord for the use by the tenant. The chattels must be associated with the tenancy.
The landlord states that some items are missing from an area within the property not designated as part of the premises. The Tribunal does not have jurisdiction to deal with these items as they are not chattels associated with the tenancy. It appears that the tenant may have made a complaint to Police or be considering a complaint to the Disputes Tribunal.
The issue in this case concerns the recording of the chattels provided. The landlord states that the property was provided as fully furnished. The photographs of the inside of the property at the commencement show items over and above that normally associated with a fully furnished property, such as beds, couches, fridge, television, microwave. The two photographs of the kitchen show appear to have been taken at different times and show items such as a full spice rack, dishes near the sink in a dish rack, ornamental plates in a wall cabinet, pot plants. The landlord states that “everything” was provided. There is no chattels list. The landlord states that at the commencement of the tenancy the family member went through the property at took a video and photographs. Some of the photographs have been produced at the hearing. The video has not been produced.
The tenant questions the date of the photographs and their accuracy in recording what was provided stating that some of the items shown in the photographs were then taken away. Although it is likely that the tenant is responsible for some missing items, I cannot be satisfied which ones. The accuracy in recording the chattels provided is insufficient. If the landlord is to provide a property fully furnished, to the extent this one was, it would be prudent to compile a comprehensive written list of the chattels and have both parties agree the contents of the list. The Tribunal expects that all evidence to be relied on will be provided to the other party, and Tribunal, in advance of the hearing, or at the very least brought to the hearing. I am also not inclined to adjourn the matter for the landlord to provide any additional evidence. The claim concerning the missing chattels is dismissed. Costs
There are no grounds on which to order reimbursement of the filing fee. Name suppression
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Although they have been wholly successful defending the claims and are entitled the tenant does not seek name suppression. There are no grounds to order suppression of the landlord’s details. No suppression orders are made.

Tenancy Tribunal case 4845887 — Rent arrears at 51 Poland Street, Waikino, Waihi 3682

At a glance

Tenancy Tribunal case 4845887 — Rent arrears at 51 Poland Street, Waikino, Waihi 3682

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions