What was the outcome of Tenancy Tribunal case 4902373?

The tribunal order states: Jarah Norma Murdoch to pay CS Residential Properties Limited $1,216.70 from

How much money was awarded in case 4902373?

Cleaning: $150.00 awarded to landlord; Corner Soaker: $230.00 awarded to landlord; Lawns and Garden Work: $172.50 awarded to landlord; Painting Lounge: $325.00 awarded to landlord; Property Damage: $48.00 awarded to landlord; Property Damage: $36.00 awarded to landlord; Rent Arrears: $120.70 awarded to landlord; Trademe Listing Fee: $134.50 awarded to landlord

What type of tenancy dispute was case 4902373?

The primary dispute was Cleanliness. Related themes: Rent arrears, Property damage.

Where can I read the official tribunal order for case 4902373?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10706902-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4902373?

The tribunal order states: Jarah Norma Murdoch to pay CS Residential Properties Limited $1,216.70 from

How much money was awarded in case 4902373?

Cleaning: $150.00 awarded to landlord; Corner Soaker: $230.00 awarded to landlord; Lawns and Garden Work: $172.50 awarded to landlord; Painting Lounge: $325.00 awarded to landlord; Property Damage: $48.00 awarded to landlord; Property Damage: $36.00 awarded to landlord; Rent Arrears: $120.70 awarded to landlord; Trademe Listing Fee: $134.50 awarded to landlord

What type of tenancy dispute was case 4902373?

The primary dispute was Cleanliness. Related themes: Rent arrears, Property damage.

Where can I read the official tribunal order for case 4902373?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10706902-Tenancy_Tribunal_Order.pdf.

130a Navigation Dr Whitby, Porirua, Porirua 5024 Tenancy Tribunal Case 4902373 — Cleanliness

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130a Navigation Dr Whitby, Porirua, Porirua 5024 Tenancy Tribunal Case 4902373 — Cleanliness | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4902373 — net $1,216.70 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (final day	$120.70	Rent arrears (final day
Trademe listing fee	$134.50	Trademe listing fee
Painting lounge	$325.00	Painting lounge
Blind replacement	$48.00	Blind replacement
Oven tray replacement	$36.00	Oven tray replacement
Corner soaker	$230.00	Corner soaker
Lawns and Garden work	$172.50	Lawns and Garden work
Cleaning	$150.00	Cleaning
Net award	$1,216.70
Bond	$3,400.00
Total payable by Tenant to Landlord	$1,216.70

Claims and awards for application 4902373 — net $1,216.70 NZD. Verify on MoJ.

Rent arrears (final day

Amount: $120.70
Awarded to: Landlord
Reason: Rent arrears (final day

Trademe listing fee

Amount: $134.50
Awarded to: Landlord
Reason: Trademe listing fee

Painting lounge

Amount: $325.00
Awarded to: Landlord
Reason: Painting lounge

Blind replacement

Amount: $48.00
Awarded to: Landlord
Reason: Blind replacement

Oven tray replacement

Amount: $36.00
Awarded to: Landlord
Reason: Oven tray replacement

Claim types — money lines allowed on this order

Cleanliness Lawns And Garden Work Property damage Rent arrears

Order

Jarah Norma Murdoch to pay CS Residential Properties Limited $1,216.70 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $3,400.00 (5837008-002) immediately apportioned as follows: CS Residential Properties Limited: $1,216.70 Jarah Norma Murdoch: $2,183.30

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The tenancy has ended, but the respective disputes centre around what happened at the end of the tenancy.
Both parties appeared at the hearing today, convened in the Porirua District Courthouse.

BACKGROUND

I will set out the more specific background more fulsomely under each claim below, but will summarise the situation for context.
The tenancy commenced on 22 May 2023 and was a fixed-term tenancy due to end on 20 May 2024.
During the fixed term period, the tenant wished to move out early. It appears that the tenant did not raise this with the landlord (but she was not required in law to do so), but the landlord received a contact from a prospective new landlord for the tenant. The landlord contacted the tenant to clarify the situation on 26 March 2024, and the tenant confirmed she was looking for a bigger house.
On 27 March 2024 the landlord advised the tenant that the tenancy was to end on 20 May, but: “we are ok to bring this forward as long as we can find a suitable tenant before then but I would imagine it would be difficult to find someone who is ready to move in the next couple of weeks. We will be listing it this weekend and will need access to show people through.”
On 15 April 2024 the landlord advised that they had not received formal notice from the tenant to end the tenancy. However the landlord states at that time the tenant would be liable to pay for the advertising for the tenancy which the landlord had done “on your behalf”, and further that they had noticed a range of work needed to the premises “while showing some prospective tenants through”. The landlord set out the cleaning and damage to the premises they considered the tenant liable for.
On 16 April 2024 the tenant emailed the landlord stating that she had moved out, and thought she had given the landlord proper notice.
On 18 April 2024 the landlord emailed the tenant advising that because it was not a fixed term tenancy, that the tenant could not give notice ending the tenancy early, but agreeing that if they could find a replacement tenant, they would agree to end the tenancy at that point.
On 19 April 2024 the tenant emailed the landlord confirming that she was not continuing the tenancy beyond the end of the fixed term tenancy, so the final date of the tenancy would be 20 May 2024.
The landlord found a new tenant, and by consent this tenancy ended on 9 May 2023, with the new tenant moving in the following day.

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 unlikely, 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. Cleaning and rubbish removal
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 (particularly photographs presented), and then to determine whether the premises would be reasonably clean. Compensation
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
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 when a person does something, or allows a situation to continue, knowing that damage is a certainty. See the High Court decision of Guo v Korck [2019] NZHC 1541. Chattels
The landlord has claimed compensation for missing chattels. Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy, the tenant must “leave in or at the premises all other chattels provided by the landlord for use of the tenant”.

ANALYSIS

I will now consider the parties respective claims. However in doing so, I will summarise the situation as I have interpreted it to be with how the tenancy ended.
The parties entered into a one year fixed term tenancy, due to end on 20 May 2024. The tenant requested that the landlord agree the tenancy could end early. It is plain the landlord was agreeable to that, because the landlord had emailed the tenant about her responsibility to pay the advertisement costs which they incurred with re-renting the premises. Ultimately the landlord did the work to find a replacement tenant. The tenant moved out mid-April, and the landlord found a new tenant to move in on 10 May.
I consider the parties did their best to navigate the process to ensure they were complying with the law.

LANDLORDS CLAIMS

Rent arrears

The landlord has applied for an order that the tenant pay rent arrears for one day, being the last day of the tenancy, 9 May 2024 being $120.70.
The tenant agrees that this last day of rent has not been paid, so it is ordered by consent.
The tenant has her own rent compensation claims, I will consider those separately. Lino stain
The landlord seeks compensation for a stain to the lino in the bathroom. The landlord has had a quote for the replacement, but seeks the tenant to pay the amount of the insurance excess. The landlord says the lino is about 7 years old, and the claim was accepted by the insurer.
The tenant agrees there was a stain, but says that after she cleaned it, the stain has mostly been removed. The tenant states that the pre-inspection report records that there were some lino stains. Analysis
It is manifest that when people live in houses, they will cause wear and tear, that is expected. That naturally means a tenant will cause some damage to the dwelling, that would be a consequence of normal use of the premises. The question in these sorts of cases becomes whether the damage that has been caused is beyond the level of fair wear and tear, and falls into the category of damage that the tenant should be liable for. It must be remembered that tenants are only liable for careless or intentional damage, the RTA does not hold tenants liable for any other sort of damage, including accidental damage (unless also careless).
I do accept that there is some visible stain on the lino that has occurred during this tenancy, but I am not persuaded that this damage is beyond the level of being fair wear and tear. The evidence is that the lino is around 7 years of age. Taking that into account, and the extent of the staining, I do not consider that a reasonable landlord would have the lino replaced only because of the stain.
On balance, I conclude that the stain would fall into the category of being fair wear and tear, which is not the liability of the tenant to replace.
This claim has not been established. Replacement/repair kitchen bench
The landlord states that the Formica has been damaged to the right of the kitchen sink. The landlord provided a photograph but noted that the photograph did not clearly slow the damage, particularly given the light.
The tenant says that she cannot see the damage. The tenant produced photographs and a video of the bench.
The landlord states that the insurer is getting a bench expert to assess the damage because they are not sure what has caused the damage, it could have been nail polish remover or bleach or some other cause, but something has taken the colour out of it. Analysis
There is a mark showing on the landlord’s photograph, but I cannot see the mark on the photographs taken by the tenant or the video which shows the end of the bench.
As I explained under the lino claim, tenants are not liable for fair wear and tear, which will mean some measure of damage to the premises fall within that category. I conclude that the landlord has not established that the damage to the benchtop is beyond the level of fair wear and tear.
Even if I were wrong in that assessment, is it not clear how the stain occurred, and to that extent, I could not conclude the damage was caused carelessly – I am sure it would not have been caused intentionally.
This claim has not been established. Listing fee
The landlord seeks reimbursement of $269.00 being the fee to advertise the property on Trademe.
The tenant states that in the contract it says that letting fees cannot be charged. Further the tenant said that she had never put it in writing that she was ending the tenancy earlier. Analysis
As I explained at the hearing, the advertising fee for the Tenancy would not fall within the criteria of being a letting fee.
Section 44A of the RTA confirms that in circumstances where a landlord agrees to a tenant terminating a fixed-term tenancy early, is entitled to recover from the outgoing tenant any “expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession or termination”.
I am entirely satisfied that the landlord advertised the property in good faith, when the tenant requested to leave the tenancy early. Unquestionably, advertising the Tenancy would be the first step to find a replacement tenant, which would mean the Tenancy for Ms Murdoch could end early which is what she is wanting. The claim for the advertising cost falls within section 44A so can be recovered.
I have determined that it would be fair for the tenant to pay half of the listing fee. In taking this approach, I am minded that the fixed-term tenancy would otherwise have ended on 20 May, and the landlord could not have recovered the listing fee after that date as the tenancy would be a periodic tenancy. If the tenant advised the landlord that she was not continuing with the tenancy as she had done, so that the tenancy would’ve ended on 20 May 2024, then the landlord would have incurred the listing charges at that time. In fact, most landlords in that situation would start advertising prior to the outgoing tenancy coming to an end to avoid gaps in tenants, so that means the landlord would have been looking at listing the premises for rent, most likely, within a matter of weeks anyway. I find the tenant liable for a contribution of $134.50 for the listing fee. Wall repair
The landlord states that there was damage to a feature wall. The wall was damaged during the tenancy and the tenant undertook a repair which was not of a professional standard. The tenant wanted to get her builder to fix it, and the landlord was not happy about that so wanted their own painter to fix it.
The landlord said that there was other damage to other rooms in the tenancy which were repaired by the painter at the same time.
The tenant agrees that the damage was caused during the tenancy, it occurred when they were moving out. The tenant said they were not dents but the paint had come away. The tenant said her builder was prepared to do the work and quoted $325.00 for the downstairs wall only. Analysis
The landlord produced photographs which show two very obvious marks on the wall in the lounge. I consider this damage is beyond fair wear and tear, and the tenant has not established the damage is something other than careless damage.
I am however minded that tenants are only liable for a depreciated amount for damage. In this case, I don’t know when the wall was last painted, but the evidence is that it was faded (hence the patch not matching), so that would suggest it is some years old. Because of that, I consider the tenant should only be liable for a contribution. I consider the fair approach is to order that the tenant pay the repainting cost to the extent of the quotation she received which is $325.00. I note also that it would have been lawful for the tenant to have had the wall painted, and because painting is not a restricted activity, it could have been done by a non-professional painter. This claim is therefore partly successful. Blind replacement
The landlord states that the premises were rented with blinds in the garage, but when the tenancy was shown to tenants these were sitting in a cupboard, but ultimately when the premises were returned the blinds missing. The landlord claims $48.00.
The tenant agrees to this claim which is ordered by consent. Oven tray replacement
The landlord states that an oven tray was missing at the end of the end of the tenancy. $36.00 is claimed.
The tenant agrees this was not returned at the end of the tenancy, because it was tatty. Analysis
As I explained at the hearing, tenants are required to return the chattels to the landlord at the end of the tenancy. I am satisfied the replacement cost for the tray would fairly be $36.00, so that is ordered Repairs and damage
The landlord seeks an order for $747.50 (coincidentally the same as the lounge painting claim). To repair corner soakers, which the landlord considered would have hit by a vehicle, and also replace the metal chain on the blind cord which was mouldy and was rusted, and additional painting upstairs. Mowing the lawns, emptying recycling bins and removing dog waste.
The tenant agrees that she did leave some recycling, but that the lawns were mowed. But she considers there were some marks and damage to the house prior to the tenancy. The tenant produced a video from about a month before the tenancy ended. Analysis
I will consider the sub-claims separately.
The landlord claims $230.00 to remove corner soakers. I consider those were likely damaged during the tenancy, and probably from a vehicle hitting it. The damage is beyond fair wear and tear, and it was probably careless damage. The amount claimed seems fair, because the amount represents purchasing the replacement soaker, travel and installing it. This is ordered in full.
The landlord seeks $138.00 and $207 for repainting walls in a bedroom, where paint had been pulled off from something being affixed to the wall, and scratched in another. The landlord also seeks costs to replace what appears to be a rusty metal chain on a blind. This claim marginal, but I consider what has been described would be fair wear and tear to bedroom walls in a family house. I am sure that the damage to the blind chain would be a maintenance issue which the landlord is liable for, I cannot see how it was caused carelessly or intentionally. I cannot therefore order the tenant to pay these costs.
The landlord claims $172.50 for general garden works. The evidence does support that the lawns and gardens were not returned to the landlord reasonably clean and tidy. The tenant’s photographs were taken about a month before possession returned, and even then the grass was long and there were weeds in the garden. I do not consider anything will turn on the landlord finishing this work before 9 May, because there is no evidence before me that the tenant was returning to do that work, nor had she made arrangements for someone to do it on her behalf. Furthermore the landlord was trying to find a replacement tenant, and that would have needed the premises to be looking spick and span, which of course would benefit the tenant with leaving sooner. The tenant is liable for the gardening-related costs. Stain removal
The landlord states there were several stains on the carpet, and is claiming $300.00 to have those stains removed. The work has not yet been done, but the premises have been re-rented.
The tenant states that there were marks on the carpet Analysis
The stains are difficult to see on the photographs, but accepting they are there, I am not persuaded that they are beyond fair wear and tear.
In my assessment the stains are minor, and I would not anticipate that a reasonable landlord would have this commercially cleaned. The fact that the landlord has re-rented the premises without the stains being removed, supports that the premises would be reasonably clean in a general sense.
This claim has not been established. Cleaning
The landlord considers that the premises were not returned reasonably clean at the end of the tenancy, and that the tenant was given an opportunity to do the cleaning which she did not do. The landlord is claiming $150.00 for a student’s time in doing this work. The landlord said the rangehood filter was not reasonably clean. The landlord advised there was not one particular area of the property being in a poor condition. The landlord produced cell phone photographs that were taken on 3 May 2024.
The tenant’s position is that the premises were returned to the landlord in a reasonably clean state. The tenant produced a video showing the state of the premises when she vacated the premises. The tenant said that she left the premises in April, and the video she took was from May. Analysis
The evidence provided by the tenant, principally the video recordings, do show that the premises are clean and tidy at the end of the tenancy, but the evidence provided by the landlord is more detailed. The landlord’s photographs are taken inside the cupboards and drawers for example, and I conclude that the state of those more particular areas, are not reasonably clean.
The landlord has claimed $150 for cleaning costs, and I consider that to be very representative of the modest level of cleaning that would have been necessary at these premises, and accordingly this claim is established and ordered in full.

TENANTS CLAIMS

The tenant said she left the premises on 14 April, and the landlord took the property over at that time. The landlord did an inspection on 15 April, 1 May and 8 May, being three inspections within the month, and a breach of the landlord’s obligations. The tenant said she was continuing to pay rent, but the landlord was undertaking considerable work including setting up scaffolding around the premises. The tenant submits that if she was still the tenant and paying rent, the landlord should not be accessing the premises as they were doing. The tenant seeks rent compensation. The tenant said she had offered to surrender the premises if her rent was to cease, but the landlord would not agree to that.
The landlords dispute that they had taken over the premises prematurely. The premises were painted externally but this was advised to the tenant in advance. The landlord did view the situation as being most advantageous to paint the premises when the tenant had moved out. At the time of the painting the tenant had moved out, and the gas and power turned off – so there would be no effective disruption to her. The landlord states that the inspection which they performed was to allow them to provide a proper notice for prospective landlords for the tenant. The landlord states they tried to meet the tenant on- site for inspections but she would not agree. The landlord further submitted that they did not need to give notice to access the outside of the tenancy. The landlord also said that the tenant had given permission to take people through the tenancy, and some of the issues they raised with the tenant were seen during these viewings.
In conclusion, the tenant said that it would not be fair to pay rent when people were working on the premises. Analysis
The tenant has all of the rights held by tenants under the RTA, and she had those rights until the tenancy ended on 9 May 2024.
However when considering this claim which is a rights based claim, I must also put into the mix that the landlord had agreed to allow the Tenancy to end early for Ms Murdoch, which is of course an outcome wholly in her favour. When the tenant requested to end the tenancy early, the landlord could have said ‘no’. The landlord was not obligated to agree to end the tenancy early, they could have said that the Tenancy will not end until 20 May 2024, and therefore the tenant would have been liable for rent until that date. It is also relevant to note that the RTA confirms that a landlord does not have to mitigate any loss concerning rent arrears, when a tenant leaves a fixed-term tenancy early.
Part and parcel with that agreement was a trade-off of rights. The landlord traded off their right to have the tenant liable for rent until 20 May, and the tenant traded off her rights around entry to the property and getting it ready to relet, in order to find her replacement tenant ASAP.
I am not persuaded that the landlord has acted outside the reasonable bounds of expectations in the circumstances. Certainly the landlord undertook painting to the outside of the tenancy, but the landlord did not need to obtain consent from the tenant for that work. The landlord had a statutory responsibility to maintain the tenancy which could include painting, and because it was outside of the dwelling, the landlord did not need to give notice, or obtain the tenants consent for that entry.
When I consider the evidence available, alongside the submissions of the parties, I conclude that there would be no rightful basis upon which I could order rent compensation to be paid to the tenant. This claim has therefore not been established.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4902373 — net $1,216.70 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (final day	$120.70	Rent arrears (final day
Trademe listing fee	$134.50	Trademe listing fee
Painting lounge	$325.00	Painting lounge
Blind replacement	$48.00	Blind replacement
Oven tray replacement	$36.00	Oven tray replacement
Corner soaker	$230.00	Corner soaker
Lawns and Garden work	$172.50	Lawns and Garden work
Cleaning	$150.00	Cleaning
Net award	$1,216.70
Bond	$3,400.00
Total payable by Tenant to Landlord	$1,216.70

Claims and awards for application 4902373 — net $1,216.70 NZD. Verify on MoJ.

Rent arrears (final day

Amount: $120.70
Awarded to: Landlord
Reason: Rent arrears (final day

Trademe listing fee

Amount: $134.50
Awarded to: Landlord
Reason: Trademe listing fee

Painting lounge

Amount: $325.00
Awarded to: Landlord
Reason: Painting lounge

Blind replacement

Amount: $48.00
Awarded to: Landlord
Reason: Blind replacement

Oven tray replacement

Amount: $36.00
Awarded to: Landlord
Reason: Oven tray replacement

Claim types — money lines allowed on this order

Cleanliness Lawns And Garden Work Property damage Rent arrears

Order

Jarah Norma Murdoch to pay CS Residential Properties Limited $1,216.70 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $3,400.00 (5837008-002) immediately apportioned as follows: CS Residential Properties Limited: $1,216.70 Jarah Norma Murdoch: $2,183.30

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The tenancy has ended, but the respective disputes centre around what happened at the end of the tenancy.
Both parties appeared at the hearing today, convened in the Porirua District Courthouse.

BACKGROUND

I will set out the more specific background more fulsomely under each claim below, but will summarise the situation for context.
The tenancy commenced on 22 May 2023 and was a fixed-term tenancy due to end on 20 May 2024.
During the fixed term period, the tenant wished to move out early. It appears that the tenant did not raise this with the landlord (but she was not required in law to do so), but the landlord received a contact from a prospective new landlord for the tenant. The landlord contacted the tenant to clarify the situation on 26 March 2024, and the tenant confirmed she was looking for a bigger house.
On 27 March 2024 the landlord advised the tenant that the tenancy was to end on 20 May, but: “we are ok to bring this forward as long as we can find a suitable tenant before then but I would imagine it would be difficult to find someone who is ready to move in the next couple of weeks. We will be listing it this weekend and will need access to show people through.”
On 15 April 2024 the landlord advised that they had not received formal notice from the tenant to end the tenancy. However the landlord states at that time the tenant would be liable to pay for the advertising for the tenancy which the landlord had done “on your behalf”, and further that they had noticed a range of work needed to the premises “while showing some prospective tenants through”. The landlord set out the cleaning and damage to the premises they considered the tenant liable for.
On 16 April 2024 the tenant emailed the landlord stating that she had moved out, and thought she had given the landlord proper notice.
On 18 April 2024 the landlord emailed the tenant advising that because it was not a fixed term tenancy, that the tenant could not give notice ending the tenancy early, but agreeing that if they could find a replacement tenant, they would agree to end the tenancy at that point.
On 19 April 2024 the tenant emailed the landlord confirming that she was not continuing the tenancy beyond the end of the fixed term tenancy, so the final date of the tenancy would be 20 May 2024.
The landlord found a new tenant, and by consent this tenancy ended on 9 May 2023, with the new tenant moving in the following day.

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 unlikely, 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. Cleaning and rubbish removal
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 (particularly photographs presented), and then to determine whether the premises would be reasonably clean. Compensation
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
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 when a person does something, or allows a situation to continue, knowing that damage is a certainty. See the High Court decision of Guo v Korck [2019] NZHC 1541. Chattels
The landlord has claimed compensation for missing chattels. Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy, the tenant must “leave in or at the premises all other chattels provided by the landlord for use of the tenant”.

ANALYSIS

I will now consider the parties respective claims. However in doing so, I will summarise the situation as I have interpreted it to be with how the tenancy ended.
The parties entered into a one year fixed term tenancy, due to end on 20 May 2024. The tenant requested that the landlord agree the tenancy could end early. It is plain the landlord was agreeable to that, because the landlord had emailed the tenant about her responsibility to pay the advertisement costs which they incurred with re-renting the premises. Ultimately the landlord did the work to find a replacement tenant. The tenant moved out mid-April, and the landlord found a new tenant to move in on 10 May.
I consider the parties did their best to navigate the process to ensure they were complying with the law.

LANDLORDS CLAIMS

Rent arrears

The landlord has applied for an order that the tenant pay rent arrears for one day, being the last day of the tenancy, 9 May 2024 being $120.70.
The tenant agrees that this last day of rent has not been paid, so it is ordered by consent.
The tenant has her own rent compensation claims, I will consider those separately. Lino stain
The landlord seeks compensation for a stain to the lino in the bathroom. The landlord has had a quote for the replacement, but seeks the tenant to pay the amount of the insurance excess. The landlord says the lino is about 7 years old, and the claim was accepted by the insurer.
The tenant agrees there was a stain, but says that after she cleaned it, the stain has mostly been removed. The tenant states that the pre-inspection report records that there were some lino stains. Analysis
It is manifest that when people live in houses, they will cause wear and tear, that is expected. That naturally means a tenant will cause some damage to the dwelling, that would be a consequence of normal use of the premises. The question in these sorts of cases becomes whether the damage that has been caused is beyond the level of fair wear and tear, and falls into the category of damage that the tenant should be liable for. It must be remembered that tenants are only liable for careless or intentional damage, the RTA does not hold tenants liable for any other sort of damage, including accidental damage (unless also careless).
I do accept that there is some visible stain on the lino that has occurred during this tenancy, but I am not persuaded that this damage is beyond the level of being fair wear and tear. The evidence is that the lino is around 7 years of age. Taking that into account, and the extent of the staining, I do not consider that a reasonable landlord would have the lino replaced only because of the stain.
On balance, I conclude that the stain would fall into the category of being fair wear and tear, which is not the liability of the tenant to replace.
This claim has not been established. Replacement/repair kitchen bench
The landlord states that the Formica has been damaged to the right of the kitchen sink. The landlord provided a photograph but noted that the photograph did not clearly slow the damage, particularly given the light.
The tenant says that she cannot see the damage. The tenant produced photographs and a video of the bench.
The landlord states that the insurer is getting a bench expert to assess the damage because they are not sure what has caused the damage, it could have been nail polish remover or bleach or some other cause, but something has taken the colour out of it. Analysis
There is a mark showing on the landlord’s photograph, but I cannot see the mark on the photographs taken by the tenant or the video which shows the end of the bench.
As I explained under the lino claim, tenants are not liable for fair wear and tear, which will mean some measure of damage to the premises fall within that category. I conclude that the landlord has not established that the damage to the benchtop is beyond the level of fair wear and tear.
Even if I were wrong in that assessment, is it not clear how the stain occurred, and to that extent, I could not conclude the damage was caused carelessly – I am sure it would not have been caused intentionally.
This claim has not been established. Listing fee
The landlord seeks reimbursement of $269.00 being the fee to advertise the property on Trademe.
The tenant states that in the contract it says that letting fees cannot be charged. Further the tenant said that she had never put it in writing that she was ending the tenancy earlier. Analysis
As I explained at the hearing, the advertising fee for the Tenancy would not fall within the criteria of being a letting fee.
Section 44A of the RTA confirms that in circumstances where a landlord agrees to a tenant terminating a fixed-term tenancy early, is entitled to recover from the outgoing tenant any “expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession or termination”.
I am entirely satisfied that the landlord advertised the property in good faith, when the tenant requested to leave the tenancy early. Unquestionably, advertising the Tenancy would be the first step to find a replacement tenant, which would mean the Tenancy for Ms Murdoch could end early which is what she is wanting. The claim for the advertising cost falls within section 44A so can be recovered.
I have determined that it would be fair for the tenant to pay half of the listing fee. In taking this approach, I am minded that the fixed-term tenancy would otherwise have ended on 20 May, and the landlord could not have recovered the listing fee after that date as the tenancy would be a periodic tenancy. If the tenant advised the landlord that she was not continuing with the tenancy as she had done, so that the tenancy would’ve ended on 20 May 2024, then the landlord would have incurred the listing charges at that time. In fact, most landlords in that situation would start advertising prior to the outgoing tenancy coming to an end to avoid gaps in tenants, so that means the landlord would have been looking at listing the premises for rent, most likely, within a matter of weeks anyway. I find the tenant liable for a contribution of $134.50 for the listing fee. Wall repair
The landlord states that there was damage to a feature wall. The wall was damaged during the tenancy and the tenant undertook a repair which was not of a professional standard. The tenant wanted to get her builder to fix it, and the landlord was not happy about that so wanted their own painter to fix it.
The landlord said that there was other damage to other rooms in the tenancy which were repaired by the painter at the same time.
The tenant agrees that the damage was caused during the tenancy, it occurred when they were moving out. The tenant said they were not dents but the paint had come away. The tenant said her builder was prepared to do the work and quoted $325.00 for the downstairs wall only. Analysis
The landlord produced photographs which show two very obvious marks on the wall in the lounge. I consider this damage is beyond fair wear and tear, and the tenant has not established the damage is something other than careless damage.
I am however minded that tenants are only liable for a depreciated amount for damage. In this case, I don’t know when the wall was last painted, but the evidence is that it was faded (hence the patch not matching), so that would suggest it is some years old. Because of that, I consider the tenant should only be liable for a contribution. I consider the fair approach is to order that the tenant pay the repainting cost to the extent of the quotation she received which is $325.00. I note also that it would have been lawful for the tenant to have had the wall painted, and because painting is not a restricted activity, it could have been done by a non-professional painter. This claim is therefore partly successful. Blind replacement
The landlord states that the premises were rented with blinds in the garage, but when the tenancy was shown to tenants these were sitting in a cupboard, but ultimately when the premises were returned the blinds missing. The landlord claims $48.00.
The tenant agrees to this claim which is ordered by consent. Oven tray replacement
The landlord states that an oven tray was missing at the end of the end of the tenancy. $36.00 is claimed.
The tenant agrees this was not returned at the end of the tenancy, because it was tatty. Analysis
As I explained at the hearing, tenants are required to return the chattels to the landlord at the end of the tenancy. I am satisfied the replacement cost for the tray would fairly be $36.00, so that is ordered Repairs and damage
The landlord seeks an order for $747.50 (coincidentally the same as the lounge painting claim). To repair corner soakers, which the landlord considered would have hit by a vehicle, and also replace the metal chain on the blind cord which was mouldy and was rusted, and additional painting upstairs. Mowing the lawns, emptying recycling bins and removing dog waste.
The tenant agrees that she did leave some recycling, but that the lawns were mowed. But she considers there were some marks and damage to the house prior to the tenancy. The tenant produced a video from about a month before the tenancy ended. Analysis
I will consider the sub-claims separately.
The landlord claims $230.00 to remove corner soakers. I consider those were likely damaged during the tenancy, and probably from a vehicle hitting it. The damage is beyond fair wear and tear, and it was probably careless damage. The amount claimed seems fair, because the amount represents purchasing the replacement soaker, travel and installing it. This is ordered in full.
The landlord seeks $138.00 and $207 for repainting walls in a bedroom, where paint had been pulled off from something being affixed to the wall, and scratched in another. The landlord also seeks costs to replace what appears to be a rusty metal chain on a blind. This claim marginal, but I consider what has been described would be fair wear and tear to bedroom walls in a family house. I am sure that the damage to the blind chain would be a maintenance issue which the landlord is liable for, I cannot see how it was caused carelessly or intentionally. I cannot therefore order the tenant to pay these costs.
The landlord claims $172.50 for general garden works. The evidence does support that the lawns and gardens were not returned to the landlord reasonably clean and tidy. The tenant’s photographs were taken about a month before possession returned, and even then the grass was long and there were weeds in the garden. I do not consider anything will turn on the landlord finishing this work before 9 May, because there is no evidence before me that the tenant was returning to do that work, nor had she made arrangements for someone to do it on her behalf. Furthermore the landlord was trying to find a replacement tenant, and that would have needed the premises to be looking spick and span, which of course would benefit the tenant with leaving sooner. The tenant is liable for the gardening-related costs. Stain removal
The landlord states there were several stains on the carpet, and is claiming $300.00 to have those stains removed. The work has not yet been done, but the premises have been re-rented.
The tenant states that there were marks on the carpet Analysis
The stains are difficult to see on the photographs, but accepting they are there, I am not persuaded that they are beyond fair wear and tear.
In my assessment the stains are minor, and I would not anticipate that a reasonable landlord would have this commercially cleaned. The fact that the landlord has re-rented the premises without the stains being removed, supports that the premises would be reasonably clean in a general sense.
This claim has not been established. Cleaning
The landlord considers that the premises were not returned reasonably clean at the end of the tenancy, and that the tenant was given an opportunity to do the cleaning which she did not do. The landlord is claiming $150.00 for a student’s time in doing this work. The landlord said the rangehood filter was not reasonably clean. The landlord advised there was not one particular area of the property being in a poor condition. The landlord produced cell phone photographs that were taken on 3 May 2024.
The tenant’s position is that the premises were returned to the landlord in a reasonably clean state. The tenant produced a video showing the state of the premises when she vacated the premises. The tenant said that she left the premises in April, and the video she took was from May. Analysis
The evidence provided by the tenant, principally the video recordings, do show that the premises are clean and tidy at the end of the tenancy, but the evidence provided by the landlord is more detailed. The landlord’s photographs are taken inside the cupboards and drawers for example, and I conclude that the state of those more particular areas, are not reasonably clean.
The landlord has claimed $150 for cleaning costs, and I consider that to be very representative of the modest level of cleaning that would have been necessary at these premises, and accordingly this claim is established and ordered in full.

TENANTS CLAIMS

The tenant said she left the premises on 14 April, and the landlord took the property over at that time. The landlord did an inspection on 15 April, 1 May and 8 May, being three inspections within the month, and a breach of the landlord’s obligations. The tenant said she was continuing to pay rent, but the landlord was undertaking considerable work including setting up scaffolding around the premises. The tenant submits that if she was still the tenant and paying rent, the landlord should not be accessing the premises as they were doing. The tenant seeks rent compensation. The tenant said she had offered to surrender the premises if her rent was to cease, but the landlord would not agree to that.
The landlords dispute that they had taken over the premises prematurely. The premises were painted externally but this was advised to the tenant in advance. The landlord did view the situation as being most advantageous to paint the premises when the tenant had moved out. At the time of the painting the tenant had moved out, and the gas and power turned off – so there would be no effective disruption to her. The landlord states that the inspection which they performed was to allow them to provide a proper notice for prospective landlords for the tenant. The landlord states they tried to meet the tenant on- site for inspections but she would not agree. The landlord further submitted that they did not need to give notice to access the outside of the tenancy. The landlord also said that the tenant had given permission to take people through the tenancy, and some of the issues they raised with the tenant were seen during these viewings.
In conclusion, the tenant said that it would not be fair to pay rent when people were working on the premises. Analysis
The tenant has all of the rights held by tenants under the RTA, and she had those rights until the tenancy ended on 9 May 2024.
However when considering this claim which is a rights based claim, I must also put into the mix that the landlord had agreed to allow the Tenancy to end early for Ms Murdoch, which is of course an outcome wholly in her favour. When the tenant requested to end the tenancy early, the landlord could have said ‘no’. The landlord was not obligated to agree to end the tenancy early, they could have said that the Tenancy will not end until 20 May 2024, and therefore the tenant would have been liable for rent until that date. It is also relevant to note that the RTA confirms that a landlord does not have to mitigate any loss concerning rent arrears, when a tenant leaves a fixed-term tenancy early.
Part and parcel with that agreement was a trade-off of rights. The landlord traded off their right to have the tenant liable for rent until 20 May, and the tenant traded off her rights around entry to the property and getting it ready to relet, in order to find her replacement tenant ASAP.
I am not persuaded that the landlord has acted outside the reasonable bounds of expectations in the circumstances. Certainly the landlord undertook painting to the outside of the tenancy, but the landlord did not need to obtain consent from the tenant for that work. The landlord had a statutory responsibility to maintain the tenancy which could include painting, and because it was outside of the dwelling, the landlord did not need to give notice, or obtain the tenants consent for that entry.
When I consider the evidence available, alongside the submissions of the parties, I conclude that there would be no rightful basis upon which I could order rent compensation to be paid to the tenant. This claim has therefore not been established.

Tenancy Tribunal case 4902373 — Cleanliness at 130a Navigation Dr Whitby, Porirua, Porirua 5024

At a glance

Tenancy Tribunal case 4902373 — Cleanliness at 130a Navigation Dr Whitby, Porirua, Porirua 5024

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions