What was the outcome of Tenancy Tribunal case 4901493?

The tribunal order states: Shun Xu and Morven Li are to pay Tandem Property Management Limited As

How much money was awarded in case 4901493?

Cleaning: $125.00 awarded to landlord; Cleaning: $143.33 awarded to landlord; Lawns and Garden Work: $40.00 awarded to landlord; Property Damage: $230.00 awarded to landlord

What type of tenancy dispute was case 4901493?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4901493?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11053452-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4901493?

The tribunal order states: Shun Xu and Morven Li are to pay Tandem Property Management Limited As

How much money was awarded in case 4901493?

Cleaning: $125.00 awarded to landlord; Cleaning: $143.33 awarded to landlord; Lawns and Garden Work: $40.00 awarded to landlord; Property Damage: $230.00 awarded to landlord

What type of tenancy dispute was case 4901493?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4901493?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11053452-Tenancy_Tribunal_Order.pdf.

76 Bankside Road, Silverdale, Silverdale 0932 Tenancy Tribunal Case 4901493 — Cleanliness

Claims and awards in Tenancy Tribunal application 4901493 — net $538.33 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$125.00	Cleaning
Curtain cleaning	$143.33	Curtain cleaning
Wall repairs	$230.00	Wall repairs
Lawns and Garden work	$40.00	Lawns and Garden work
Net award	$538.33
Bond	$3,680.00
Total payable by Tenant to Landlord	$538.33

Claims and awards in Tenancy Tribunal application 4901493 — net $538.33 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$125.00	Cleaning
Curtain cleaning	$143.33	Curtain cleaning
Wall repairs	$230.00	Wall repairs
Lawns and Garden work	$40.00	Lawns and Garden work
Net award	$538.33
Bond	$3,680.00
Total payable by Tenant to Landlord	$538.33

Order

Shun Xu and Morven Li are to pay Tandem Property Management Limited As Agent For Lishan & Jingnian Zhou $538.33 from the bond, calculated as shown in the table below:
The Bond Centre is to pay the bond of $3,680.00 (6070654-010) immediately apportioned as follows: Tandem Property Management Limited As Agent For Lishan & Jingnian Zhou: $538.33 Shun Xu and Morven Li: $3,141.67
The landlord’s applications for compensation for damage to the carpet and replacement of a heat bulb are dismissed.
The tenant’s application for compensation for emotional distress is dismissed.

Reasons

The landlord’s agent attended the hearing. Only one of the tenants, Shun Xu, attended the hearing. Ms Xu confirmed that she had authority to speak for the other tenant.
This is a cross-application. The tenant has applied for refund of the bond and compensation for emotional distress. The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

Is the tenant responsible for the damage to the premises?

Sections 40(2)(a), 41 and 49B of the Residential Tenancies Act 1986 (RTA) provide that 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.
Section 49B(3)(a) of the RTA provides that 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).
Section 49B(3)(b) of the RTA provides that where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Section 49B(1) of the RTA provides that 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.
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 landlord claims that the following damage was caused during the tenancy: a) stains to the carpet; b) stains to the curtains; and c) damage to the walls.
The tenancy started on 25 September 2021. The landlord inspected the property and completed an ingoing tenancy inspection report on 04 August 2021. The tenant was not present when this inspection was carried out. The tenant said she did not receive a copy of the inspection report until she requested it towards the end of the tenancy. The landlord said that the report would have been emailed to the tenant and the tenant would have been advised in that email that if there were any issues they must be raised within 7 days. However, the agent responsible for the premises at the time was not at the hearing and the landlord could not produce any evidence confirming that the report had been emailed to the tenant. a) Is the tenant responsible for the stains on the carpet?
The ingoing inspection report and supporting photographs show there was one stain on the carpet at the start of the tenancy.
The tenant provided an email she sent to the agent at the time of 31 October 2021 in which she said: ... [w]hen we moved in we found stain marks on the carpet upstairs, and couple marks and chips on the kitchen counter, we took photos for reference...
The tenant has provided the photographs referred to in the email above which are date stamped as being taken before the tenancy commenced.
The outgoing inspection report includes photographs of stains on the carpet which cannot be seen in the photographs contained in the ingoing inspection report. When asked about the tenant’s photographs, the landlord said that they stood by the ingoing inspection report and that if the stains had been present, they would have been picked up in the ingoing inspection report.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
On the evidence presented to me, I consider it is more likely than not that the tenant was not provided with a copy of the ingoing inspection report. I also consider it is more likely than not that the tenant’s photographs of the stains were taken before the tenancy commenced and the reason why the stains cannot be seen in the photographs contained in the ingoing inspection report is because of the angle and/or distance the photographs were taken.
I am not satisfied that the damage to the carpet occurred during the tenancy.
Even if I had been satisfied that the damage occurred during the tenancy and was more than fair wear and tear and the tenant was unable to satisfy me that the damage was not careless or intentional, I would not have awarded the amount sought by the landlord: $800.00. At the hearing, the landlord advised that the carpet was at least 10 years old. When awarding compensation for damage to carpet, I am required to consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. Inland Revenue’s General depreciation rates, IR265, August 2024, 1 provides that carpet has an estimated useful life of 8 years. When the tenant vacated the premises, the carpet was due to be replaced.
The claim for compensation for damage to the carpet is dismissed. b) Is the tenant responsible for the marks on the curtains?
The landlord claims that the tenant damaged the curtains by leaving them stained and with cat hair on them. The landlord has provided an invoice of $430.00 (including GST) for cleaning of the curtains. The landlord has provided a number of photographs of the curtains in the outgoing inspection report showing that they were stained in a number of places. There are some 1 https://www.ird.govt.nz/income-tax/income-tax-for-businesses-and-organisations/types-of-business- expenses/depreciation/claiming-depreciation/work-out-your-assets-rate-and-depreciation-value, retrieved on 08 November 2024. photographs in the ingoing inspection report of the curtains, and they do not show the same amount of damage.
The tenant denies damaging the curtains during the tenancy and says that the damage does not show up in the ingoing inspection report because not all of the curtains were photographed fully to show the damage.
The landlord advised that the curtains are at least 10 years old. The Inland Revenue in its General depreciation rates, August, IR265 provides that the useful life of curtains in a residential rental property is 8 years.
I consider it to be more likely than not that the tenant was responsible for some of the stains to the curtains and that there was cat hair on the curtains. However, as the curtains were overdue to be replaced, I do not consider it is reasonable for the tenant to be responsible for the full cost of cleaning the curtains.
I award $143.33 (including GST) for this claim. c) Is the tenant responsible for damage to the walls?
The landlord claims that the tenant damaged the walls in 5 different areas. The landlord has provided an invoice to repair the walls of $230.00 (including GST). The landlord referred me to the ingoing and outgoing inspection reports as evidence that the damage occurred during the tenancy.
The tenant said that the damage was there when she moved in, but she did not notice it. I find that the damage was caused during the tenancy and was more than fair wear and tear and the tenant has not disproved liability for the damage.
I award $230 (including GST) for this claim.

Did the tenant comply with their obligations at the end of the tenancy?

Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. Section 40(1)(ca) of the RTA provides that the tenant is required to replace worn out smoke alarm batteries during the tenancy. The tenant must also replace standard light bulbs.
The landlord is claiming $201.25 to clean the premises. The landlord has provided an invoice to support this claim.
The photographs contained in the outgoing inspection report show that the tenant did not leave the premises reasonably clean and tidy. Following receipt of this report, the tenant returned to the premises and carried out further cleaning. A further outgoing report was provided showing that there were still issues with the cleaning.
While I accept that the tenant did not leave the premises reasonably clean and tidy and further cleaning work was required, I consider the sum claimed excessive. I award $125 (inclusive of GST) being 2.5 hours cleaning at $50 per hour plus GST.
The landlord claims $14.64 (including GST) for replacement of a heat bulb. The tenant says the bulb was missing when she moved in and produced a photograph to support this. The ingoing inspection report states that the lights in the bathroom were “intact – no damage”. However, given my finding that the tenant was not given a copy of this report, I place limited weight on it. The claim for replacement of the heat bulb is dismissed.
The landlord says that the gardens were not left reasonably tidy and required work. The landlord has produced photographs of the same in the ingoing and outgoing inspection reports and an invoice for weeding the garden of $80.00 (including GST). The outgoing photographs show that the gardens were not left in a reasonably tidy condition.
The tenant says that the ingoing photographs were taken 6 weeks before she moved in, and the garden was left in the same condition as when she moved in.
I accept that there was 6 weeks between when the tenant moved in and when the photographs were taken, and that the landlord should have carried out further garden work during that time. However, I do not consider that this absolves the tenant of responsibility for the garden at the end of the tenancy. I award $40 (including GST) for this claim. Did the landlord harass the tenant otherwise breach the tenant’s right to quiet enjoyment of the premises?
The tenant claims the landlord’s actions caused her emotional distress.
Section 38(2) of the RTA provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
Section 38(3) and Schedule 1A of the RTA provides that breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant says that during the tenancy, the landlord: a. Gave an unfavourable reference which resulted in her being rejected from another tenancy; b. Harassed her by carrying out three inspections within a six-week period, issuing two 14-day notices and asking her to have a carpet specialist assess the carpet.
I do not consider that giving a negative reference (if one was given) in these circumstances amounts to interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
On or about 26 March 2024, the landlord carried out an inspection of the property. On 27 March 2024, the landlord sent an email to the tenant advising the landlord considered the tenant has breached section 40 of the RTA by failing to keep the property clean and tidy and section 40(2)(A) of the RTA by intentionally or carelessly causing damage to the property including damage to the carpet. The tenant was asked to remedy the breach by weeding the garden, carrying out some cleaning and having the carpets professionally cleaned.
In this email, the landlord said that another inspection would take place on 11 April to see if the matters had been remedied. The inspection took place on 11 April. The following day, the landlord sent a further email to the tenant saying the matters had not been remedied and giving another 14 days’ notice to remedy the breach. The landlord said she would carry out a further inspection on 29 April.
The tenant was asked to allow the landlord’s carpet expert to assess the carpet to ascertain who was responsible for the damage. The landlord said if the tenant was found to be responsible for the damage this would be at her cost. The tenant refused and the assessment did not take place.
The tenant complains that there was more than one inspection in four weeks. Section 48(2)(b) of the RTA provides that inspections may not occur more than once in any 4-week period. However, where a notice has been issued to remedy a breach under the RTA or under the tenancy agreement, the relevant provision for entry is section 48(2)(c) of the RTA. Broadly, the effect of this section is that the inspection is paused to allow for the landlord to return to check if the breach has been remedied.
The landlord was entitled to carry out the inspections. The tenant did not agree to the landlord’s carpet expert attending the property and I do not consider the request for this to take place, or the number of inspections amounts to harassment or a breach of the tenant’s right to quiet enjoyment of the premises.
The tenant claims that the manner in which the inspections were carried out caused her distress. Specifically, the tenant says the landlord was rude, that one person attending the inspection refused to take off his shoes before entering the property, and that the inspection included climbing into the shower to see if it had been cleaned properly. The landlord’s agent says that the tenant was hostile towards her to the extent that she considered it necessary to take a colleague with her to the inspections.
Simple rudeness and dislike do not amount to a breach of quiet enjoyment or to harassment. As stated by this Tribunal in Mcintosh v O'Malley [2022] NZTT 4325097, 4326905: The Tribunal is a court of law, not a court of manners. It is not unlawful for a landlord to be rude. It is not a breach of a legal duty for the landlord and tenant to dislike each other.
The tenant’s claims for compensation for the landlord’s treatment of her are dismissed.
Both parties have had some success with their claims. However, neither party has been wholly or substantially successful and I decline to award reimbursement of the filing fee to either party.

Tenancy Tribunal case 4901493 — Cleanliness at 76 Bankside Road, Silverdale, Silverdale 0932

At a glance

Tenancy Tribunal case 4901493 — Cleanliness at 76 Bankside Road, Silverdale, Silverdale 0932

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions