Published tribunal order
Tenancy Tribunal case 5056911 — Rent arrears at 11 Turnbull Crescent, Morrinsville, Morrinsville 3300
Decided 26 Mar 2025 · Published 26 Mar 2025 · Application 5056911
Landlord favoured
- Rent arrears
- Property damage
- Cleanliness
Order
- Jessica Christina Te Paki must pay Kevin Deane Real Estate (Morrinsville) Limited - As Agent for James Richard & Chelsea Semple & Alley $1,292.81 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,080.00 (3749057-009) to Kevin Deane Real Estate (Morrinsville) Limited - As Agent for James Richard & Chelsea Semple & Alley immediately.
Reasons
- Ms Kewish appeared for the landlord. There was no appearance by the tenant.
- The landlord’s claims are that the tenant: i. Is liable for rent arrears ($1,805.71), ii. Failed to leave the property reasonably clean and tidy ($290.00), iii. Failed to remove all rubbish and return the lawns reasonably tidy ($840.10), iv. Is responsible for damage to walls and a roller door ($425.50), v. Is responsible for damage to a window in the toilet ($33.36),
- In brackets next to the claims is the compensation sought.
- 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”). How much is owed for rent.
- The tenancy commenced on 13 June 2023 and is periodic. On 13 September 2024, the tenant informed the landlord that they would be vacating the property but did not give an end date. The landlord responded stating they accepted the advice as a 28-day notice, which ended the tenancy on 11 October 2024. The landlord has produced rent records which prove the rent owing at 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 and remove all rubbish. See section 40(1)(e)(ii)-(v) of the Act.
- The Act 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, and not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy. Determining whether the tenant has failed to leave the property reasonably clean and tidy, and remove all rubbish, will involve an objective assessment. The Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
- The property was built in the 1960s and consists of three bedrooms, kitchen, lounge, dining room, bathroom, toilet, a garage, and a carport.
- The landlord has produced photographs taken at the commencement and end of the tenancy. The landlord has pointed to areas where they claim the tenant has failed to meet the required standard, including the windows sills throughout, the kitchen, the bathroom, and inside of the oven. Based on the evidence, I accept that these areas have not been left reasonably clean and tidy. The amount claimed is reasonable under the circumstances and is awarded.
- The photographs show that the lawns were not returned in at least the same condition they were at the commencement of the tenancy when they were in a reasonable state. There was also a significant amount of household rubbish and other items left in the garage. Based on the evidence, the amount claimed, which includes disposal fees, is reasonable and is awarded in full.
Is the tenant responsible for damage?
- 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.
- 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).
- If this is established that the damage occurred during the tenancy and is more than fair wear and tear, the tenant must prove, to avoid liability, that they or someone at the property with their permission did not carelessly or intentionally cause or permit the damage.
- 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.
- Tenants are liable for the full 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.
- Where the damage is caused carelessly, and occurred after 27 August 2019, 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).
- In addressing carelessness, the question is whether the tenant, or person at the property with their permission, exercised a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective, not based on the subjective opinions of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The primary goal of compensation is to return the landlord to the position they would have been in had the tenant not breached their obligations. If compensation claimed would result in the landlord being better off than there were originally, the Tribunal may reduce the award to reflect betterment. In calculating any depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Toilet window
- The landlord states that during the tenancy the toilet window was damaged, the tenant accepted responsibility, and promised to pay for its repair, which cost $33.36. However, the tenant did not pay, and the landlord is seeking an order against the tenant.
- In this case, the landlord must establish that the damage occurred during the tenancy and is more than fair wear and tear. Apart from the landlord’s oral evidence regarding the tenant’s acceptance of liability and the invoice, no other evidence has been produced. There is insufficient evidence to support the claim, and it is dismissed. Holes on walls and garage door
- Based on the pre tenancy and end of tenancy photographs I am satisfied that holes in a lounge wall and inside of a bedroom wardrobe occurred during the tenancy. The photographs suggest that the damage is more than fair wear and tear and is likely the result of carelessness. The amount claimed to repair the damage is less than the insurance excess. Only the damaged areas were repaired, and I make no deduction for betterment.
- The invoice also includes charges for weed spraying, removal of some metal items, and reinstating the garage door, which had come off its rollers on one side.
- On the evidence I am not satisfied that the roller door coming off its track constitutes damage more than fair wear and tear. Accordingly, I deduct a small amount from the invoice and award the landlord $410.00. Costs
- Because Kevin Deane Real Estate (Morrinsville) Limited - As Agent for James Richard & Chelsea Semple & Alley has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression.
- Although they are entitled to it, the landlord does not seek name suppression.