What was the outcome of Tenancy Tribunal case 5122154?

The tribunal order states: Sara Beattie, Mathew Wallis, Liam Doyle and Alex M Vujnovich to pay Greg

How much money was awarded in case 5122154?

Cleaning: $50.00 awarded to landlord; Property Damage: $74.43 awarded to landlord; By consent: Replace mattress protect…: $44.00 awarded to landlord; Cleaning: $225.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $316.25 awarded to landlord

What type of tenancy dispute was case 5122154?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5122154?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11773441-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5122154?

The tribunal order states: Sara Beattie, Mathew Wallis, Liam Doyle and Alex M Vujnovich to pay Greg

How much money was awarded in case 5122154?

Cleaning: $50.00 awarded to landlord; Property Damage: $74.43 awarded to landlord; By consent: Replace mattress protect…: $44.00 awarded to landlord; Cleaning: $225.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $316.25 awarded to landlord

What type of tenancy dispute was case 5122154?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5122154?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11773441-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1201, 17 Vogel Lane, Auckland CBD, Auckland Tenancy Tribunal Case 5122154 — Property damage

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Order

Claims and awards in Tenancy Tribunal application 5122154 — net $736.68 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs to benchtop	$316.25	Repairs to benchtop
Cleaning and carpet cleaning	$225.00	t fair and expeditious resolution of this dispute is to order the tenant to pay $225.00 towards cleaning and carpet cleaning.
By consent: Repair window latch	$74.43	By consent: Repair window latch
By consent: Replace mattress protector	$44.00	By consent: Replace mattress protector
By consent: Clean mats	$50.00	By consent: Clean mats
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$736.68
Bond	$3,000.00
Total payable by Tenant to Landlord	$736.68

Sara Beattie, Mathew Wallis, Liam Doyle and Alex M Vujnovich to pay Greg Collett $736.68 from the bond, calculated as shown in table below.

The Bond Centre is to pay the bond of $3,000.00 (5286214-013) immediately apportioned as follows: Greg Collett: $736.68 Sara Beattie, Mathew Wallis, Liam Doyle and Alex M Vujnovich: $2,263.32

Reasons

The landlord attended the hearing. Sara Beattie and Alex Vujnovich attended the hearing on behalf of all of the tenants.

The landlord has applied for compensation for the following items: a. Repair kitchen bench $316.25 b. Cleaning and carpet cleaning $450.00 c. Replace window latch $74.43 d. Replace mattress protector $44.00 e. Cleaning of mats in the premises$50.00

The tenant does not dispute the following claims: a. Replace window latch $74.43 b. Replace mattress protector $44.00 c. Cleaning of mats in the premises$50.00

This decision only focuses on the contentious matters, namely the landlord’s claim for compensation to repair the kitchen bench and clean the inside of the premises and carpet.

As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This 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 Katipo 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 of 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.

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 at the hearing). I must weigh this evidence to decide what is more likely. CLEANING & CARPET CLEANING The law

A tenant is required to leave the premises reasonable clean and tidy. 1

“Reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable. 2 It does not mean commercially clean, 3 spotless 4 or to a hotel or motel standard. 5 The better the premises and the higher the rent payable, the higher the standard expected. 6 Evidence and submissions of the parties

The landlord claims the tenant did not leave the premises reasonably clean and tidy. The landlord gave evidence that the tenant only appeared to have vacuumed the property and that overall, it was not in a clean and tidy state.

The landlord submitted a total of 9 photographs taken at the end of the tenancy. These photographs show the kitchen and dining area at a distance, as well as close up photographs of one area of the carpet. There are also three photographs taken where the landlord has removed the fridge and washing machine. Dust and spillage is apparent on the vinyl underneath where these appliances sat.

In the photographs of the carpet, there appears to be a small – moderate sized stain on the carpet next to the kitchen benchtop.

There are also two close up photographs of the shower floor. The drain and shower floor do not appear to have been cleaned.

The landlord gave evidence that the property was brand new when the tenancy began and was provided to the tenant in a very clean state. The landlord submits that whilst he does not expect the tenant to return it in a pristine condition, it was not returned in a clean and tidy condition at all.

The tenant gave evidence that they vacuumed the property and gave it a general clean. The tenant submits the property was generally tidy, but accepts they could have done a more thorough job.

The tenant gave that there were four tenants with varying commitments and it was a busy time leading up to the end of the tenancy. 1 Residential Tenancies Act 1986, section 40(1)(e)(iii). 2 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 3 Mills v Kiwi Property Care Ltd NZTT Auckland TT215/93, 8 February 1993 at [8]. 4 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 5 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 6 Westwood v Western [1994] DCR 759 at [770].

Sara Beattie gave evidence that she and Mathew Wallis met with the landlord at the end of the tenancy to hand the keys back. Ms Beattie claims there was a discussion with the landlord and building manager regarding the state of the property and the need for further cleaning. Ms Beattie gave evidence that the building manager stated that she had a friend who does professional cleaning. A brief assessment of the state of the apartment was completed and Ms Beattie was advised that it would cost approximately $200.00 to clean the apartment. Ms Beattie states that she agreed to pay this amount towards a professional clean of the property.

The landlord gave evidence confirming that there was a discussion with the tenant at the end of the tenancy regarding the need for further cleaning. The landlord accepts that an estimate of $200.00 was provided to the tenant, but submits that this was an estimate only and the actual cost came back at $450.00, including $25.00 for carpet cleaning. The landlord claims that the tenant should cover the entire cost, as professional cleaning would not have been required if they had left the property in a clean and tidy state. Analysis

In the circumstances of this case, I find it fair and reasonable that the tenant should pay the landlord $225.00 towards cleaning and carpet cleaning.

There was a discussion around the need for further cleaning at the end of the tenancy and the tenant agreed to pay $200.00 towards this cost. On this basis, the landlord incurred a cost and hired a professional cleaner.

The invoice came back larger than what the tenant agreed to pay. I have considered the photographs of the property taken at the end of the tenancy and find that the state the property was left in does not justify payment by the tenant of an additional $250.00. There is clearly a stain on the carpet in the kitchen/dining area and the landlord submitted an invoice for $25.00 to remove this. I find it fair and reasonable the tenant should reimburse the landlord this additional cost, but nothing further.

The photograph of the kitchen and dining area taken at a distance shows this part of the property to be in a reasonably clean and tidy condition. Whilst there is dust and spillage underneath the fridge and washing machine, that is to be expected. These appliances are heavy and not generally moved when routine cleaning is undertaken. A tenant does not have to leave the property in a pristine condition, only a reasonably clean and tidy one. The removal of heavy appliances and cleaning underneath them is not required in order to leave a property reasonably clean and tidy.

The landlord has only taken two close-up photographs of the shower floor and has not submitted any other photographs of the bathroom. Although the drain and shower floor do not appear to have been cleaned, the landlord has not proven that the rest of the bathroom was left in an unreasonably clean and tidy state. Similarly, no photographs of the bedrooms or toilets were submitted.

The Tribunal is required to exercise its jurisdiction in a manner that ensures the fair and expeditious resolution of disputes. 7 The tenant agreed to pay the landlord $200.00 towards cleaning and the landlord incurred a cost on the basis of this agreement. In all of the circumstances, I find the most fair and expeditious resolution of this dispute is to order the tenant to pay $225.00 towards cleaning and carpet cleaning.

The landlord’s claim for compensation is granted for $225.00.

DAMAGE

The law

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. 7 Residential Tenancies Act 1986, section 85(1).

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. Evidence and submissions of the parties

The landlord claims the stone kitchen bench was damaged during the tenancy. The landlord submitted a photograph of the kitchen bench taken at the end of the tenancy. A small chip is apparent in the benchtop near the kitchen sink.

The landlord has had the chip repaired at a cost of $327.75 and submitted an invoice for this amount. The landlord seeks compensation of $316.25.

The tenant accepts that the chip occurred during the tenancy, but does not know exactly when or how it occurred. The tenant gave evidence that it most likely occurred when they were washing a pot or pan and was an accident.

The tenant submits the damage is fair wear and tear. Analysis

I find that the kitchen bench was chipped during the tenancy. I find the damage to be beyond fair wear and tear and characterise it as careless damage.

This tenancy was just under 2 years long. The landlord gave evidence that the kitchen bench was brand new at the beginning of the tenancy and very solid. I accept the landlord’s evidence on this point. Whilst some deterioration in condition to the bench might be expected as a result of reasonable use during the tenancy, a chip to a solid stone benchtop within a relatively short amount of time is unusual. For this reason, I find the damage to be beyond fair wear and tear.

I accept the tenant’s evidence regarding how the chip most likely occurred and characterise it as careless damage, rather than intentional.

The landlord’s claim for compensation to repair the chip in the kitchen benchtop is granted for $316.25.

All of the amounts ordered above are proved.

I have taken into account 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, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

FILING FEE

Because Greg Collett has wholly succeeded with the claim I must reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5122154 — net $736.68 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs to benchtop	$316.25	Repairs to benchtop
Cleaning and carpet cleaning	$225.00	t fair and expeditious resolution of this dispute is to order the tenant to pay $225.00 towards cleaning and carpet cleaning.
By consent: Repair window latch	$74.43	By consent: Repair window latch
By consent: Replace mattress protector	$44.00	By consent: Replace mattress protector
By consent: Clean mats	$50.00	By consent: Clean mats
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$736.68
Bond	$3,000.00
Total payable by Tenant to Landlord	$736.68