Published tribunal order
Tenancy Tribunal case 4916333 — Cleanliness at 77A Eliot Street, New Plymouth 4310
Decided 17 Jan 2025 · Published 17 Jan 2025 · Application 4916333
Landlord favoured
- Cleanliness
- Property damage
Order
- No suppression orders apply to the publication of this decision.
- The landlord claims for compensation for the following replacement chattels is dismissed: TV, mirror, clothes rack, magazine rack, paintings x3, steak knives, towels, bedding, face cloths, tea towels, peg basket, laundry basket and ornaments.
- The landlord claims for compensation for damage to outside furniture, dresser and cabinet, kitchen blind, lounge suite, Tv cabinet and toaster is dismissed.
- The landlord claims for compensation for payment of an invoice to repair a broken window is dismissed.
- Megan Leigh to pay Property Management New Plymouth 2020 Limited - As Agent For Silver Century Holdings Ltd $866.99 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,600.00 (6452498-003) immediately apportioned as follows: Property Management New Plymouth 2020 Limited - As Agent For Silver Century Holdings Ltd: $866.99 Megan Leigh: $733.01
Reasons
- Only the landlord attended the hearing. The tenant did not attend. I am satisfied that the Tenant has been adequately served so has had notice of this hearing because she presently lives in a property that is managed by the landlord’s agent. Evidence of this was provided. She has been served by post at that address. The hearing therefore proceeded in her absence.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA). Carpet and rug cleaning
- The landlord seeks sums for carpet and rug cleaning.
- The RTA does not require the premises to be returned in an immaculate condition - only in a reasonably clean and tidy state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. A tenant is not required to rigorously clean. It is common that a landlord wishes to clean to this "extra" level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
- On balance, I accept that the landlord has proven that the carpet was not left reasonably clean and tidy. I award $91.49 for the hire of a Rug Doctor and $30 for the labour cost of the landlord who undertook the work himself.
- I make this award on the basis that I consider this to be a reasonable sum given the hire of the machine, the nature of the stains and the size of the property. I have also taken into account that the ingoing property inspection records some existing stains.
- While I accept that the landlord has shown that the rug has some minor marks (this rug is referred to as “clean with some minor stains” on the landlord’s outgoing property inspection report), I do not consider the rug to be unreasonably clean and so no award is made in relation to this. Keys
- The landlord says that the tenant did not return the keys to the front door and the gate and seek replacement costs of this.
- The landlord only had sufficient evidence that the tenant was given a front door key. There was no evidence of the tenant being given a gate key. The photocopy of the key that was provided, and the tenancy agreement, both refer to just one key.
- The property manager could not give oral evidence on this as he was not the property manager at the time.
- I am satisfied that the landlord has only sufficiently proven the tenant had a front door key and this was not returned.
- I therefore limit my award to the sum of $142.16 for the lock replacement for the front door. This awards the landlord a sum in relation to one of the two barrels used as specified on the invoice (I was told one barrel was for the gate and one for the door) and half of the labour costs and half of the travel costs which I consider to be fair. I make no award in relation to the “lock rim zenith” referred to on the invoice as I do not know if this was part of the gate lock or the door lock.
- No award is made in respect of the landlord’s claim for the time he took to arrange this. Having residential property to rent is a business and such administrative work of arranging for tradespeople is part of the usual costs of running a business. Missing chattels
- The landlord says many chattels were missing and claims a range of items: From a TV to steak knives to tea towels.
- Section 13A, RTA requires a tenancy agreement to include a list of any chattels provided by the landlord. Section 37 RTA also provides that the tenant shall have vacant possession of the premises on the date on which, in accordance with the tenancy agreement, the tenant is entitled to enter into occupation of the premises. Leaving items that are not part of the tenancy agreement at the premises may mean that a tenant does not have vacant possession.
- There is no chattel list in the tenancy agreement which reflects the items that were left in the home. The tenancy agreement simply states:
- When compared to the landlord’s claims this is in no way a complete list. Further, only some of the additional items also in the house are recorded in writing in the ingoing property inspection report.
- Despite not having them listed in a chattel list The landlord says that the following chattels were missing at the end of the tenancy. a. TV b. Mirror c. Clothes rack d. Magazine rack e. Paintings x3 f. Steak knives x3 g. Towels, bedding, face cloths and tea towels h. Peg basket i. Laundry basket j. Deck ornaments.
- For reasons set out below I accept that these were chattels in the tenancy but ultimately the landlord has not replaced these items and therefore cannot prove loss.
- Submissions and evidence were limited to oral submissions that the landlord had looked up or visited stores to look for replacement costs. There was no probative evidence. This is not sufficient to prove loss. I am also not satisfied that the items will be replaced. A significant amount of time has now passed since this tenancy ended. The landlord has now stopped renting the property and his son lives in it.
- This is sufficient to dismiss the above claims and they are dismissed.
- However, I also note that even if loss was proven some of the above claims were wholly unrealistic.
- For example, the landlord claimed full replacement costs of what might be described as smaller consumable type items. For example, tea towels which, at the start of the tenancy, appear to be in a well-used condition (the landlord says they are about 2-3 years old), personal linen items said to be 3 years old (the condition of which is impossible to ascertain from the ingoing photographs), a plastic peg basket (said to be 3 years old), and steak knives (said to be over 3 years old but ultimately not known because they were included as part of the property when it was purchased by the landlord). As well as these smaller items there are also larger items claimed for such as a TV (said to be between 8 and 10 years old).
- In awarding compensation for damage, the Tribunal must 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. In calculating depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan.
- If loss was proven a number of the above items therefore would have depreciated beyond their useful lifespan. This would have greatly reduced the amount of any award made. For example, IRD depreciation rates (while this IRD guideline relates to motels, prior to this property being rented this property was rented as an air bnb) for linen/bedding and cutlery is 3 years and for a television 5 years. I would also not expect a plastic peg basket or a plastic laundry basket to last longer than a few years.
- The landlord also says that the following were also missing chattels. I have considered these separately as there are receipts to support the sum claimed: a. a free view remote, b. rake c. hose.
- The landlord says that these items have been replaced. A receipt is provided for the rake and hose and a receipt also provided for the purchase of a new free view box. The landlord says a new free view box was necessary to buy in order to get a new remote.
- The landlord has proven by way of ingoing photographs that the items were there at the start of the tenancy. I have no reason to doubt the oral evidence that the items were missing at the end of the tenancy.
- I have carefully considered the position in the light of there being no chattel list. Where there is no chattel list, not only is it in breach section 13A, RTA, its absence makes matters difficult practically for both the tenant and the landlord particularly at the end of the tenancy to reconcile what ought to be left at the end of the tenancy.
- It is not uncommon for some landlords to leave items at a property that they think might be useful to the tenant or that they do not want to have to dispose of (often left by previous tenants). For example, outdoor chairs, bookcases, gardening tools or additional bins. They are often left for the landlord’s convenience.
- Here a professional property manager prepared the tenancy agreement. It sets out only a minimal number of items as chattels. It is far from clear why so many items left at the property were not listed as chattels. If an item is not included in a chattel list the problem is that the tenant is essentially left in an unclear position – Can they dispose of the item if they do not want it? Do they have to, or can they, remove it when they leave? It also creates uncertainty for a landlord: Does the landlord have to replace it as part of their maintenance obligations? In behaving this way, the landlord might also fail to give vacant possession or breach the tenant’s quiet enjoyment (section 38, RTA). This will all depend on the facts.
- The landlord says that the property was rented as a fully furnished property and in the absence of any evidence or submission to the contrary I have no reason to doubt this. This is supported by the extent and range of the items recorded as being at the property at the start of the tenancy in photographs.
- Therefore, I find that the free view remote, rake and hose (as well as the other items listed above but in respect of which no award is made) were all provided as a chattel for the property and therefore the tenant ought to have left these at the property when she left.
- There is no substantive evidence to support the age of the rake, hose and remote but there are photographs showing their existence and condition.
- I award the landlord $30 for the replacement cost of a free view remote which I consider to be a reasonable sum. The landlord purchased a new free view box to get a new remote, and while he only sought some of the cost of that, I am not satisfied that the $75 he has claimed is a reasonable replacement sum for the remote. I am not satisfied that the landlord has established that it was not possible to purchase a standalone remote. The landlord also now has the benefit of now having a new free view box and remote rather than one which is several years old (the landlord says 2-3 years old) and I must take this depreciation and betterment into account.
- I award the landlord $30 towards the cost of the replacement hose (the hose was said to be two years old) and award $14 towards the replacement of the rake (the landlord said this was one year old but the tenancy itself was over a yearlong). I consider these sums awarded to be reasonable given the stated age and condition of the items at the start of the tenancy.
- The landlord seeks his time/costs to go to Bunnings and Noel Leeming to get the replacement hose and rake and remote/box. It can be reasonable for a landlord to claim some compensation for time and cost in collecting materials. Very limited evidence was given by the landlord in respect of the time claimed here. I award the landlord $15 in respect of this which I consider to be reasonable given the nature of the items replaced and the limited nature of the evidence before me about the time actually taken.
Is the tenant responsible for the damage to the premises?
- 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. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- 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). See section 49B(3)(a) RTA.
- 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). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- 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. See section 49B(1) RTA.
- 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. Kitchen bench
- The landlord says that the tenant damaged the kitchen bench top with numerous chips, marks and stains. The sum claimed to repair the damage is $443.90. Photographs of the bench at the start and end of the tenancy were provided. The landlord says there were 6 or 7 marks or chips to the bench. A repairer filled the laminate and then sprayed it to match. The ingoing property report records that the bench has no marks or stains or scratches at the start of the tenancy and this is supported by photographs. The kitchen is estimated to be in the region of 8 years old.
- I am satisfied that the damage occurred during the tenancy and that the damage is more than fair wear and tear. The tenant has not disproved liability for the damage.
- In this case I consider the most likely situation is that the damage was intentional damage. That is because, it is more likely than not that the tenant allowed a continuing situation that they would reasonably have been aware would have caused damage to the premises, but did nothing to avoid the further damage.
- Given the landlord remedied the damage (rather than replace) and taking into account the unmarked condition of the bench at the start of the tenancy I am satisfied that the landlord will not be returned to the position they would have been in had the tenant not breached their obligations and will not be better or worse off by awarding the landlord the full sum claimed. Therefore, I have not depreciated the figure charged by the tradesperson to remedy the bench damage.
- However, I decline to make an award for the landlord’s time to source the tradesperson and attend for the repairs. Having residential property to rent is a business and such administrative work is part of the usual costs of running a business. In any event, sufficient evidence was presented to support this part of the claim. Outside furniture
- The landlord says that the tenant damaged outside furniture which is 5 years old. For reasons set out above I accept this is a chattel in this tenancy.
- I am not satisfied that this damage is anything other than fair wear and tear. I am not persuaded that the damage would fall outside the range of what could reasonably be accepted as being fair wear and tear. Over the course of time outside furniture, especially those with a textile component, will break or wear. Landlords are responsible for maintenance of premises.
- Given that I have been unable to find that the damage is outside what would be fair wear and tear, the landlord has not established this claim, which must be dismissed. Dresser and bedside cabinet
- The landlord says that the tenant damaged a bedside cabinet as there is water damage in a drawer and a cabinet has a drawer where a bottom has come out of it.
- The cabinets are both older in style and could be described as repurposed or upcycled. The landlord did the repairs to the furniture himself. For reasons set out above I accept these are a chattel in this tenancy.
- Given the nature of the damage in the bedside cabinet I am not satisfied that this is more than fair wear and tear and so the tenant is not liable for this damage. When people live in a house, marks, including those on chattels will occur. Things will get knocked and there will be minor scrapes and scuffs.
- I cannot see that the water marks are anything extraordinary.
- In relation to the cabinet, given the fact these are older re-purposed drawers I am also not satisfied that this is anything other than fair wear and tear.
- This part of the claim is also dismissed. Blinds
- The landlord says that the tenant damaged the bedroom venetian blind and a roller blind in the kitchen.
- I am satisfied that the damage to the bedroom venetian blind is more than fair wear and wear and the tenant has not disproved liability for the damage. This is because wood is broken off.
- That blind is estimated to be 5 years old. This was an estimate only as the blind came with the property when purchased. Blinds are said, by the IRD to have an average lifespan of around 8 years. Pre tenancy inspection photographs show the blind to be in a reasonable condition. The cost of the replacement of this blind was $95. The landlord also seeks labour costs of purchasing and reinstalling a new blind.
- I award the landlord $50 towards the replacement cost and labour costs associated with this blind. This award takes into account the unknown but estimated age and condition of the blind at the start of the tenancy.
- The landlord says that the other blind is estimated to be 2 years old. It also came with the building when it was purchased. The blind has been damaged as it has some light fraying to the edges and the cord that pulls the blind up and down is now missing.
- The ingoing property inspection does not have sufficient photographic evidence to show the full condition of the blind although it does show the cord in place. The condition of this blind is not referred to in the written part of the ingoing report.
- I find that the landlord has not established that this is anything other than fair wear and tear. Blinds do not last indefinitely. They will break over time or wear.
- Even if this was wrong and this is more than fair wear and tear there is insufficient information for me to make an award because I cannot fully see the condition of the blind at the start of the tenancy and there is insufficient evidence as to its age. This part of the claim is dismissed. Lounge suite damage
- The landlord says he had to have parts of the lounge suite sewn up. For reasons set out above I accept this is a chattel in this tenancy. The landlord claims $20.
- There is insufficient evidence to support the sum claimed. Despite being advised the work had been done no invoice or receipt was provided to support the loss.
- Therefore, this claim is dismissed. Replacement TV cabinet
- The landlord says a TV cabinet was destroyed as it was left outside. For reasons set out above I accept this is a chattel in this tenancy.
- There is no probative evidence to show the damage claimed. There is also no evidence to support the loss claimed and it has not been replaced. I cannot be satisfied that it will be replaced.
- The landlord has not sufficiently proven damage or loss. This claim is therefore dismissed.
- In any event, given the age of the cabinet (estimate 8 years) only a nominal award (if any) would likely have been ordered in any event due to depreciation and betterment. Replacement toaster
- The landlord says a toaster provided no longer worked. For reasons set out above I accept this is a chattel in this tenancy.
- There was no evidence to support the loss claimed. The toaster has not been replaced. Therefore, this claim is dismissed. In any event, on the basis of the evidence before me I find that a non-working toaster is most likely fair wear and tear and the claim is also dismissed on this basis. Repairs to bathroom window
- During the course of the tenancy I heard that the tenant broke a window and the tenant arranged for it to be replaced. The glazier invoiced the tenant directly and the tenant then did not pay the invoice.
- The landlord has now paid that invoice, although it is addressed to the tenant, and the landlord now seeks to recover the sum from the tenant.
- The tenant and the glazier entered into the contract together for the glazier to repair the window. The landlord was not involved until the glazier told him that the tenant would not pay. The landlord has gone ahead and paid this invoice despite not being liable to the glazier for the invoice. There is no evidence that the tenant agreed to the landlord doing this on her behalf. In the circumstances, I am not satisfied that this is a sum that the landlord may seek from the tenant.
- This claim is dismissed. Filing fee and suppression
- The landlord has been partly successful with the claim so I have reimbursed the filing fee.
- The landlord seeks suppression of its identifying details. Section 95A RTA 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.
- The landlord has not been wholly or substantially successful in this case having no succeeded in a significant number of the items claimed for and therefore I decline to award name suppression on this basis. I see no other basis to award suppression. I am mindful that open justice is a fundamental principle in our legal system. It is common for parties to seek suppression, but this is not a reason to award it. This dispute is not unusual or other than the ordinary business of the Tribunal. The public interest outweighs the landlord’s interest. Accordingly, the landlord’s application for suppression is declined.