What was the outcome of Tenancy Tribunal case 4996488?

The tribunal order states: Michael Summers to pay Frontier Property Management Limited $705.02 from

How much money was awarded in case 4996488?

Cleaning: $300.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $118.60 awarded to landlord; Property Damage: $87.50 awarded to landlord; Water Rates: $171.92 awarded to landlord

What type of tenancy dispute was case 4996488?

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

Where can I read the official tribunal order for case 4996488?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11778166-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4996488?

The tribunal order states: Michael Summers to pay Frontier Property Management Limited $705.02 from

How much money was awarded in case 4996488?

Cleaning: $300.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $118.60 awarded to landlord; Property Damage: $87.50 awarded to landlord; Water Rates: $171.92 awarded to landlord

What type of tenancy dispute was case 4996488?

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

Where can I read the official tribunal order for case 4996488?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11778166-Tenancy_Tribunal_Order.pdf.

14 John Fair Drive, Wainui, Wainui 0932 Tenancy Tribunal Case 4996488 — Cleanliness

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Reasons

Claims and awards in Tenancy Tribunal application 4996488 — net $705.02 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears for 15.8.24	$118.60	the claim for rent arrears is proven. Did the tenant comply with their obligations at the end of the tenancy?
Water rates (by consent	$171.92	Water rates (by consent
Repairs: Shower glass replacement	$87.50	Repairs: Shower glass replacement
Cleaning	$300.00	The claim for cleaning is proven. Garage remotes:
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$705.02
Bond	$3,200.00
Total payable by Tenant to Landlord	$705.02

Both parties attended the hearing. The tenant was assisted by an appointed representative. A witness also attended in support of the tenant.

The landlord has applied for rent and water arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The landlord submitted substantial documentation with their online application. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.

Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a landlord application, that means that it is for the landlord to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

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.

How much is owed for rent and water arrears?

The tenancy ended on 14 August 2024. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

The tenant accepts the outstanding water charge and is allowed by consent.

The tenancy was to end on 14 August 2024. The landlord undertook an exit inspection on the afternoon of the 14 th and noticed a number of belongings still at the property. The landlord also noticed that the property had not been cleaned properly. The landlord insisted that the tenant needed to vacate the premises on the 14 th as arranged.

There was conflicting evidence taken during the hearing as to whether the landlord asked to undertake an early inspection or whether the tenant requested further time to leave.

During the hearing the tenant accepted that they spent one further night at the address. They did not return vacant possession to the landlord by 11:59pm on 14 August 2024. Vacant possession was returned to the landlord on 15 August 2024 which the landlord was entitled to charge for.

Accordingly, the claim for rent arrears is proven.

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, remove all rubbish, 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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs. Cleaning:

The landlord claims that the tenant did not leave the premises reasonably clean and tidy. They claim that when they attended on 14 August 2024 at the request of the tenant the landlord could see that there were several areas which required attention. The landlord returned the following day and again conducted the exit inspection noting that some of the cleaning issues had not been resolved.

The tenant says that they had the property professionally cleaned on 13 August 2024. They stated that the cleaner also returned at 6am on the morning they vacated and undertook further cleaning. The tenant maintains that the property was left reasonably clean and tidy. I also sighted a video on the tenant’s telephone during the hearing which the tenant says was taken on the final day of the tenancy.

I also acknowledge the evidence of the witness received during the hearing in respect of the cleaning.

While the Residential Tenancies Act (“RTA”) does not require the premises to be provided or returned in a spotless or an immaculate condition the standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.

Based on the photographic evidence provided by the landlord I am satisfied that there were areas of the house which were not left reasonably clean and tidy and required further attention. The landlord provided an invoice from a cleaner dated 17 August 2024 confirming the cleaning attendance.

The claim for cleaning is proven. Garage remotes:

The landlord claims that the tenant was given two remotes at the start of the tenancy and only one was returned.

The tenant says they were only provided with one garage door remote. The Harcourts entry inspection evidence lists two remotes however the entry inspection was carried out some 10 days before the tenants moved in. They maintain that they were only given one remote.

The current property manager took over management of the property in May 2023. The landlord provided an invoice during the hearing dated 24 August 2024 for the replacement remote. The invoice is from Key Tronics New Zealand for $230.00.

I find that the evidence filed in support of this claim is unreliable. The entry inspection report is dated 15 November 2022. The tenant took possession some 10 days’ later on 25 November 2022. The landlord was unable to provide photographic evidence of the garage door remotes as at the move in date of 25 November 2022.

For want of evidence, I cannot be confident that the tenants received two garage door remotes at the start of the tenancy.

The claim for garage door remote replacement is dismissed. Smoke alarm:

The landlord says that the tenant took one of the smoke alarms from the property. They claim that there were 3 smoke alarms when they moved in and that one was removed.

The landlord claims $200.00 for a new smoke alarm but has not provided any expense claim for this. There is scant evidence filed in support of this claim.

The tenant says that one of the smoke alarms was missing and only had the plastic base screwed on the ceiling.

In the absence of supporting evidence, I am not prepared to allow this claim. At the very least I would have expected a purchase receipt confirming the amount paid for a new smoke alarm.

The claim for smoke alarm replacement is dismissed.

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.

The landlord claims the following damage was caused during the tenancy: damage to walls, flooring and shower glass. Shower glass repair:

The landlord says that the tenant damaged the glass on the side of the shower.

The tenant says that they were in bed one evening when the shower glass shattered.

The landlord says that the tenant agreed to pay half. The damage occurred sometime during February 2024. The landlord provided an email from Number One Glass dated 20 February 2024 advising that the glass shattered because of a metal caddie hanging on top of the glass.

Although the tenant disputes liability the reality is that he has already paid for most of the damage and has a remaining balance of $87.50 left to pay.

I have sighted an email from the tenant dated 20 March 2024 offering to pay for the damage by instalment. As at todays’ hearing the tenant has already paid money towards the damage. The landlord states that the owner agreed to meet the cost of this halfway. The landlord now claims the outstanding amount.

Accordingly, I find that the tenant has accepted a degree of liability for this damage and therefore I allow the claim. Wall repairs:

The landlord claims that the tenants damaged the paint on the walls of the house. The landlord provided an invoice from PE Enterprise Limited for $339.25 for repairs to walls for nails and holes.

The landlord says that this damage is not fair wear and tear.

The tenant says that the issue of wall damage was never brought to their attention. The damage amounts to scratches, picture hook holes, and minor damage to walls caused by furniture.

The landlord provided a number of photographs of the alleged damage.

The tenants say that they put some picture hooks on the wall but they were only small. The tenants say that the damage is fair wear and tear. The tenants also say that routine inspections confirmed that the house was in excellent condition and that the landlord did not bring these issues to the tenant’s attention during routine inspections. The tenant also took photographs on 15 August 2024. I viewed these photos on the tenant’s phone during the hearing.

Is this minor damage a result of fair wear and tear? A tenant is not liable for fair wear and tear, meaning damage during the ordinary use of the premises. Mere use of the premises will by the law of inevitability produce a deterioration in condition. I certainly do not class the damage as substantial damage.

Based on the photographic evidence provided by the landlord I am satisfied that the minor damage as depicted is fair, wear and tear. I also take into account the length of time the tenants resided there, just under two years.

Under section 49B (8)(a)(i), the onus is on the landlord to establish that the damage is not fair wear and tear. The standard of proof is the balance of probabilities, but I am not satisfied that it is met and I dismiss the claim. Floor damage:

The landlord says that tenants damaged the floor which had to be repaired. The landlord provided an invoice from Prime Floors Limited dated 20 August 2024 for $800.00 which has been paid.

The tenants say that the flooring damage was there when they moved in. The tenant showed a photo on her phone to me during the hearing which clearly shows some damage to the floor in the hallway next to the kitchen at the start of the tenancy.

The difficulty for the property manager who attended todays’ hearing is that she was not the property manager at the start of the tenancy. It is also unclear from the evidence provided when the landlord first became aware of the alleged flooring damage.

I have carefully considered the evidence provided in support of this claim and cannot be satisfied that the alleged damage was caused during this tenancy. There is clear evidence of some damage to the flooring as confirmed by the photographs taken by the tenant at the start of the tenancy. Furthermore, the black and white photographs provided by the landlord do not assist me in respect of this claim.

Accordingly, I am not persuaded that the tenant is responsible for the flooring damage as claimed.

The claim in respect of flooring damage is dismissed. Racial discrimination:

The landlord claims that the tenant has discriminated against her by using a racial slur.

Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation. See also section 12(1)(a) RTA.

The landlord claims that on the morning of 15 August 2024 the tenant made a racial comment to her along the lines that he is western. The landlord was shocked to hear this and replied that she is just doing her job and that the Tribunal will base a decision on evidence.

The landlord claims that the tenant then called her “stupid Chinese”. The landlord then says that the tenant’s partner spat on her. The landlord did not report this to the police.

The tenant does not accept this allegation. The tenant claims that the landlord stated “don’t think that you’re white and that you can win the case”.

It was clearly evident during the hearing that any professional relationship which once existed between the parties is now beyond repair. And any allegation of racial abuse must be taken seriously and carefully considered against the evidence provided.

The landlord claims that the tenant spat on her. As noted above this was not reported to the police, which I find surprising. Nevertheless, in the absence of corroborating evidence I cannot be satisfied that the tenant has committed an unlawful act.

I am also not satisfied that the alleged verbal attack on the landlord by the tenant amounts to a breach of the RTA. The RTA is specific in that section 12 relates to the granting, or otherwise, of a tenancy. While the landlord may very well have a claim via a different jurisdiction I find that the alleged verbal attack by the tenant is not, in my view, discrimination under the RTA.

I also acknowledge the oral evidence of the witness received during the hearing which touched on this allegation.

The landlord’s claim for racial discrimination is dismissed. Witness:

The tenant called a witness (the tenant’s mother). She provided viva voce evidence in respect of the tenancy. She confirmed that the property was cleaned on 13 August 2024 and in her opinion the house was left in excellent condition.

She further stated that on the morning of 15 August 2024 the property manager threatened to take the tenant to the Tenancy Tribunal. She believes that the cleaning issues as claimed by the landlord were not justified. She stated that the property manager undertook an inspection which was minuscule and that she was zooming in on issues.

She further stated that the claim of discrimination is unfounded. She did not hear any racial slurs. She also thought that the property manager was being disrespectful towards her son.

The landlord questioned the witness and put to her whether she heard anything which was said. The witness said that she heard some heated words but did not hear specific words.

The witness stated that she did not see the female tenant spit on the landlord.

I acknowledge the oral evidence produced by this witness during the hearing and assure the parties that I have taken her evidence into account when considering the landlord’s claims.

Because Frontier Property Management Limited has had some success with the application I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4996488 — net $705.02 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears for 15.8.24	$118.60	the claim for rent arrears is proven. Did the tenant comply with their obligations at the end of the tenancy?
Water rates (by consent	$171.92	Water rates (by consent
Repairs: Shower glass replacement	$87.50	Repairs: Shower glass replacement
Cleaning	$300.00	The claim for cleaning is proven. Garage remotes:
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$705.02
Bond	$3,200.00
Total payable by Tenant to Landlord	$705.02