Published tribunal order
Tenancy Tribunal case 4968813 — Property damage at 1 Kingsbury Court, Rototuna North, Hamilton 3210
Decided 27 Oct 2024 · Published 27 Oct 2024 · Application 4968813
Landlord favoured
- Property damage
- Cleanliness
Order
- Pieter Du Plessis and Charmaine Du Plessis to pay Quality Rental Management Limited as Agent for Jared Radich & Kellie Julian $619.00 from the bond, calculated as shown in table below.
- The Bond Centre is to pay $ 669.00 from the bond (6470891-003) to Quality Rental Management Limited as Agent for Jared Radich & Kellie Julian immediately. The Bond Centre is to pay the balance of the bond of $2,131.00 (6470891-003) to Pieter Du Plessis and Charmaine Du Plessis immediately.
Reasons
- Mrs Marsters, Ms Christensen, and Ms Harrison appeared for the landlord. Mr Du Plessis appeared for the tenant.
- The tenancy commenced on 28 December 2022, and ended on 19 June 2024. On 12 August 2024, the landlord filed a claim for compensation, refund of the bond, and reimbursement of the filing fee.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Did the tenant comply with their obligations at the end of the tenancy?
- The property was built in 2006, and consists of four bedroom, ensuite bathroom, main bathroom, toilet, kitchen, dining / lounge area, laundry, and internal garage.
- The landlord claims that the tenant has failed to leave the interior of the property, the carpet, and the gardens in a reasonable condition. The landlord also claims that the tenant is liable for missing curtains in the dining room.
- The landlord is claiming $212.69 for cleaning, $280.00 for carpet cleaning, $115.00 for garden maintenance, and $569.97 to replace the curtains.
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. This includes the carpet and the lawns and gardens. See section 40(1)(e)(ii)-(v) of the Act.
- What is reasonably clean and tidy is not defined in the Act. The standard is based on what an average bystander would consider reasonable, not the subjective opinions of the landlord or tenant. In determining whether the tenant has failed to meet their obligations the Tribunal must evaluate the evidence available including inspection reports and photographs. Carpet
- The agreement allowed the tenant to have a cat, which they did starting in May 2023. In return the tenant agreed to have the carpets professionally cleaned at the end of the tenancy.
- A term that requires professional carpet cleaning at the end of the tenancy, over and above the tenant’s statutory obligation to leave the carpet reasonably clean, is unenforceable, unless there are special circumstances justifying it. In this case allowing the tenant to keep an animal in my view justifies a condition that the tenant have the carpets professionally cleaned.
- The tenant arranged for professional cleaning which was conducted on 18 June 2024.Unfortunatley, the cleaning did not remove cat hair. After the end of tenancy inspection, the landlord initially agreed to let the tenant’s carpet cleaner return and rectify the issue, giving the tenant until midday the following day. The tenant accepted the offer and arranged for the carpet cleaner to return. The landlord was then instructed by the owner to withdraw the offer, which had already been accepted. The tenant questions why they should be held liable when they were denied the chance to rectify the matter.
- The tenant raises equitable estoppel, which prevents the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable.
- A party claiming an equitable estoppel must establish that: i. A belief or expectation has been created or encouraged through some action, representation, or omission to act by the other party, ii. The belief or expectation has been reasonably relied on to their detriment, iii. It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.
- This principle is consistent with the jurisdiction of the Tenancy Tribunal (Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 & 4053657), in particular s 85(2) RTA, provides that: The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
- The carpet was not left reasonably clean. However, the tenant was promised the opportunity to address the issue, which would have been at no extra cost to themselves. This was an opportunity then denied by the landlord. While awarding the full amount claimed would be unfair, I am satisfied it is reasonable to hold the tenant liable for the difference between invoices, and I award the landlord $50.00. General cleaning
- The landlord claims the tenant did not leave the heat pump filters, rangehood filters, splash back behind the stove, inside of the oven, the kitchen sink, kitchen benchtop, part of the kitchen cabinetry, two door frames, and a window frame in a bedroom reasonably clean. The landlord has also referred to the presence of fly excrement on light fixtures throughout the property.
- Ms Christensen completed a pre tenancy inspection on 23 December 2022. Apart from two photographs of the lounge, there are no photographs showing the state of cleanness or condition of the property at the commencement. The only reference in the checklist to the properties state of cleanliness is the comment “clean and tidy throughout.”
- The cleaning invoice covers the lounge ceilings, heat pump filters, oven, rangehood, kitchen ceiling, and light fittings in the lounge, kitchen, hallway, and garage.
- The tenant states that they completed four hours cleaning and were unaware that they had missed any areas. The tenant states that the mark on the kitchen benchtop was present at the commencement of the tenancy, and the cat hair shown on the window could have blown through the window after the end of the tenancy. The tenant challenges the landlord’s assertion that the splash back was greasy, stating that it is not shown in the photographs. The tenant states that they are unfamiliar with heat pumps or rangehoods, and that they had not been advised by the landlord that they were responsible for cleaning the filters and the landlord had not shown them how to clean them, so they were left.
- Under the Healthy Homes Standards, a landlord is responsible for providing and maintaining an approved heat source in the main living room and adequate ventilation in the kitchen. To meet this obligation both will require regular servicing. The landlord stated they likely informed the tenant of their responsibility for the filters, though they could not definitively recall discussing obligations or showing the tenant how to remove and clean the filters.
- Having heard from the parties and conducted an objective assessment of the evidence, I am satisfied that the tenant has failed to leave the light fixtures, the ceiling in the lounge, hallway, and garage, and a small area of the kitchen cabinetry, which has a small a tomato sauce stain, reasonably clean. There is insufficient evidence that the tenant was informed of their responsibility for the filters. The Tribunal is not satisfied that the tenant has failed to leave the inside the oven or splash back in a reasonable condition. I reduce the amount claimed and award $100.00 for cleaning. Garden
- The letter box at the front of the property was mounted on top of a brick pillar surrounded by a stone border. The landlord has produced a photograph taken at the end showing weeds and grass growing through the weed matting beneath the stones. Although no photographs have been produced of the letter box at the commencement of the tenancy, Ms Christensen states that it had been recently sprayed and was free of weeds and grasses. There is another similar garden nearby containing stones and succulents. The garden has wooden border. The landlord states that a part of the border has lifted. Damage which they claim occurred during the tenancy and is more than fair wear and tear. Once again, there are no photographs of the garden concerned at the commencement. Ms Christensen cannot recall exact state of the border.
- The tenant states that the letter box was damaged during the tenancy, an insurance claim was accepted, and that it was repaired after the end of the tenancy. Since it wasn’t repaired by the end of the tenancy, they decided to leave the area, which they believed was reasonably tidy. However, the tenant denies that the area around the letterbox was completely free of grass and weeds at the commencement of the tenancy.
- There are no other claims made for any other parts of the garden. The onus of proof rests with the landlord. Without pre tenancy photographs of the gardens the Tribunal is unable to make an objective before and after assessment. There is insufficient evidence that the tenant has failed to meet their obligations and the claim is dismissed. Curtains
- The curtains over the ranchslider doors in the lounge have extensions attached to the bottom so they reach the floor. The curtain over a window in the dining room does not have an extension, as it is not necessary. The landlord has produced photograph taken on 23 November 2022 of the lounge and dining room which shows these curtains at a distance. The landlord claims that at the end of the tenancy one of the curtain extensions for one of the ranchsliders was missing. The landlord states that they cannot not replace one without mismatching the others and are therefore claiming the cost to replace all three. The landlord estimates the curtains to be at least 20 years old. The pre tenancy inspection report records the condition of the curtains in the lounge / dining room as “good.”
- The tenant disputes this description. The tenant states that shortly after the commencement of the tenancy they advised the landlord that they had removed curtains in the lounge / dining room and replaced them with their own. The tenant advised that they had done so because the curtains were stained, smelt of animal urine, and in a poor condition. The tenant advised that the curtains had been stored a cupboard and suggested the landlord collect and attempt to have them cleaned. The landlord accepted that they had been advised but did not collect them as suggested. The tenant states that at the end of the tenancy they reinstalled the landlord’s curtains and were unaware of any missing sections. The tenant questions whether they had not in error reinstalled the wrong curtain over the ranchslider, noting that the end of tenancy photographs did not show the curtain over the dining room window. The landlord claims that the dining window had the correct curtain, although it is not possible to make an independent assessment.
- Without seeing all of the curtains in the dining room and lounge at the end of the tenancy, I cannot discount the possibility that the tenant has, as stated, reinstated the wrong curtain over the wrong window. The landlord points to the fraying on the bottom edge of the curtain over the ranchslider as evidence of the missing attachment. However, these curtains likely showed signs of significant wear and tear at the commencement of the tenancy. On the evidence I am not satisfied that the tenant is liable, and the claim is dismissed.
Is the tenant responsible for damage?
- The landlord claims the tenant is responsible for damage to the carpet in the hallway outside one of the bedrooms, a chipped tile in the kitchen, the oven door seal, pantry door hinges, and walls and skirting boards.
- To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act 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) of the Act.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also 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. Carpet
- The landlord has produced a photograph of an area of carpet in the hallway outside a bedroom which they claim shows damage consistent with having been clawed or scratched by a cat. The landlord had the damaged area patched and is claiming $416.30. I note this amount includes $59.80 to backfill one of the cupboards. There is no evidence that the tenant is liable for this part of the claim.
- The tenant denies the claim. The pre tenancy inspection was conducted without the tenant present. Following the inspection the landlord sent the checklist to the tenant, inviting them to report any issues not noted. The tenant has produced a message sent to the landlord on 04 January 2023, reporting a strong animal odour and areas of the carpet with existing damage. The tenant states that their own cat did not exit quarantine until around early May 2023.
- The landlord states that having been advised of the damage they visited the property and spoke with the other tenant. After inspecting the carpet, they concluded it was not damage caused by an animal but rather “fibre tufting” resulting from recent carpet cleaning.
- Having heard from the parties and viewed the photographic evidence, I am not satisfied that this is damage has occurred during the tenancy. The fibre tufting and the alleged damage appear the same. The claim is dismissed. Tile in the kitchen.
- There was pre-existing damage to one of the floor tiles in the kitchen in the form of two small chips approximately 0.5cm x.05cm. The landlord has produced a photograph of another larger chip, approximately 1.0cm x 0.5cm. The landlord repaired all three chips at a cost of $276.00.
- The tenant acknowledged the pre tenancy damage and produced their own photographs, but they were unaware of any further damage. The tenant stated that they moved their fridge from the kitchen using a trolley and that the damage might have occurred then. They can offer no other explanation.
- I am satisfied the damage occurred during the tenancy. Damage caused while moving furniture or heavy appliances is not typical everyday use. On that basis I find the damage to be more than fair wear and tear. The damage is likely the result of carelessness. The amount claimed is less than the landlord’s excess per claim. I divide the amount by three and award the landlord $92.00 to repair the tile. Pantry door hinges
- The landlord has produced photographs showing damage to pantry door hinges. Along with the carpet and curtains the hinges were one of the issues raised with the landlord on 04 January 2023. On the evidence, I am not satisfied that this damage has occurred during the tenancy. I also note that the kitchen cabinetry appears to be original. Oven door seal
- The oven was replaced about a year after the tenancy commenced. The landlord has produced a photograph of the oven door seal, which shows a scorned / discoloured section. The landlord claims damage is more than fair wear and tear.
- The tenant denies liability, stating that the oven is a high use appliance which they used normally.
- I am not satisfied that the tenant has been careless while using the oven. The oven seal is designed to prevent hot air and material from escaping the oven. To expect the seal to remain pristine and not suffer some minor damage would be unreasonable. Based on the evidence, I am not satisfied that this damage is more than fair wear and tear. Walls
- The landlord has produced photographs showing a 1cm x 1cm gouge to a wall in the garage, a small crescent shaped debt above the fibre box in the dining room, a 1.0cm circular dent on a wall in the hallway, a ding to a skirting board corner in the hallway, a small wallpaper tear nearby, and two small chips on the windowsill in the master bedroom.
- The landlord acknowledges similar pre-existing damage at the commencement of the tenancy, as noted in the check list. The tenant has also produced photographs taken on 29 December 2022 showing damage they recorded as pre- existing. The landlord claims the damage is over and above that pre-existing.
- As stated, there are no pre tenancy photographs produced by the landlord who relies solely on the checklist, and Ms Christensen’s memory. The small crescent shaped dent above the fibre box in the dining room, the small circular dent in the wall in the hallway, and two small chips on the windowsill in the master bedroom are insignificant and could have easily been overlooked.
- However, the ding to a skirting board corner in the hallway, the nearby wallpaper tear, and the gouge to the wall in the garage are more noticeable. Having considered the evidence, I am satisfied that this damage has occurred during the tenancy and is more than fair wear and tear. The landlord is claiming $1,000.50 to repair all five areas of damage. To repair the skirting board, wallpaper in the hallway, and gouge in the garage, I take a starting point of $400.00. Only the damaged areas were repaired, and no deduction for betterment is made. I award $400.00. Costs.
- As the landlord has been partly successful, I order reimbursement of the filing fee. Name suppression.
- The landlord seeks name suppression. The tenant does not.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- I am not satisfied that the landlord has been substantially successful. No orders are made for suppression.