Published tribunal order
Tenancy Tribunal case 5200072 — Property damage at 116 Navigation Drive, Whitby, Porirua 5024
Decided 16 Jun 2025 · Published 16 Jun 2025 · Application 5200072
Landlord favoured
- Property damage
- Exemplary damages
- Cleanliness
Order
- Michael Botha and Nicole Mary Botha must pay Personal Property Management Limited as agent For Briggs Residential Ltd, $165.36 immediately, calculated as shown in table below:
- The Bond Centre is to pay the bond of $1,257.14 (5833082-004) to Personal Property Management Limited as agent For Briggs Residential Ltd immediately.
Reasons
A. The landlord’s application
- The landlord has claimed fixed term break fees, compensation for repairs, cleaning, carpet cleaning, lawns, exemplary damages and the filing fee. a. Are the tenants liable for $2,119.00 expenses for a break fee?
- The tenancy commenced on 18 July 2022 for a fixed term to 18 July 2024. The parties extended the tenancy for another fixed term to 18 July 2025. On 14 October 2024 the tenants asked to reduce the fixed term to 19 December 2024 because of work in Christchurch. The landlord agreed to reduce the fixed term on the condition that the tenants accepted the conditions set out in his email. On 27 October the tenants emailed confirming they accepted the landlord’s conditions for them reducing the fixed term. On 4 November the tenants emailed the property manager stating that they were not sure when he “intended to market the property, but perhaps we are at that point now”.
- The property was advertised. The landlord advised the tenants on 20 November that viewings the previous week resulted in the three applications but only one was suitable. The suitable tenant couldn’t move until 25 January, but the landlord assisted the current tenants by securing an agreement from the prospective tenants to pay rent from 10 January 2025. The landlord asked the departing tenants if they agreed to this possibility. The alternative was to keep advertising and hope for someone to take over the rental sooner. The tenants agreed and the landlord completing a tenancy agreement with the prospective tenants. In their email the tenants added that they gave two months notice but the property manager “only started advertising a month after we gave notice”.
- The landlord submitted an invoice to the tenants dated 24 March 2025 for costs relating to the property manager’s time winding up the tenancy. The tenants have disputed the charges.
- It is a landlord/property manager’s right to claim expenses incurred as a result of tenants breaking a fixed term tenancy. Section 44A(1) states: A landlord who consents to an assignment under section 43B, to a subletting or parting with possession under section 44, or to termination of the tenancy in accordance with section 50(1)(d) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination.
- The Tribunal therefore must audit the invoice to check if all claims for payment are “expenses reasonably incurred”.
- The advertising cost of $268.00 (incl GST) is proved.
- The landlord has charged for two credit checks of prospective tenants at $25.00 each plus GST. I accept those charges were incurred.
- The landlord charged for an hour of time liaising with the owner regarding breaking the fixed term and time placing the advertisement. That amounts to $92.00 including GST and is reasonable for the outgoing tenants to pay.
- The landlord has charged for five hours regarding inquiries and viewings at the property, processing the applications and contract preparation for the next tenancy. That charge is for a total $460.00 including GST.
- The total of the above charges is $877.50 including GST.
- The break lease fee of $877.50 is consistent with charges I have seen in the Tribunal for this type of work. I have considered whether this amount should be reduced for betterment. The landlord benefits by extending the time, by six months, before these expenses will reoccur.
- The landlord has also invoiced the tenants for two hours for a check out inspection and issuing a recording of that inspection. Tenants are not usually charged for check out inspections. This also applies to time taking start of tenancy photos and an inspection with new tenants. I accept that this work occurred about six months sooner than it would have if the fixed term had not been reduced.
- Although the landlord’s expenses have occurred six months before they would have if the fixed term had not been reduced, the owner has the benefit of a new tenancy that extends beyond the original tenancy. Therefore the letting expenses will not be necessary for at least for six months after the original fixed term ends.
- The property manager’s invoice to the tenants also includes charges for time spent dealing with the departing tenants about checkout issues, rent, and time taken to organize cleaning and repairs. It is common for a property manager to spend time on issues involving rent, whether a property is reasonable clean and tidy, and arranging repairs both during and at the end of a tenancy. That time is not a tenant expense. Property rental is a business. A business owner can expect that there will be time running the business that is not always chargeable.
- The property manager’s invoice to the tenants also includes seven hours for Tenancy Tribunal filing, hearing preparation and appearance costs. These expenses are the cost of proceedings. Section 102 of the Residential Tenancies Act 1986 provides that the Tribunal shall have no power to award costs to or against any party to proceedings except in particular circumstances. The circumstances listed in section 102 do not apply to this case. The seven hours claimed for that work is not within the Tribunal’s jurisdiction to order.
- Having considered all the expenses claimed for breaking the lease and possible betterment, I find the merits and justice to be that the tenants pay $877.50 of the $2,119.50 claimed. b. Should the tenants pay for carpet cleaning?
- The property manager inspected the premises at the end of the tenancy. He provided photos of the carpet showing dog hair on the carpet in the dining room, lounge, bedroom, closet storage area, garage and upstairs. The landlord also provided an email from the new tenants dated 14 April stating that the carpets were “still heavily covered with dog hair despite the cleaning”. They said that it took the first month of vacuuming before the dog hair was removed.
- The tenants dispute that the carpets needed to be commercially cleaned. They believe the closeup photos exaggerate the extent of the dog hair on the carpet and the carpet was reasonably clean. Their point of view was that the tenancy was agreement allowed pets and therefore a small amount of dog hair should be expected.
- The test that the Tribunal applies regarding cleaning is section 40(1)(e)(iii) which provides that a tenant must leave the premises in a reasonably clean and tidy condition.
- The fact that a tenancy agreement includes permission for pets does not mean tenants can leave the premises less clean than non-pet premises.
- Having considered all the evidence regarding the condition of the carpet I am satisfied that the carpets were not left in a reasonably clean condition. The amount of dog hair on the carpets was unacceptable. It was reasonable for the landlord to employ a contractor to carry out cleaning. The fact that there was still dog hair after vacuuming and steam shampooing shows that the amount of dog hair was considerable.
- The amount claimed for carpet cleaning, $437.00, is ordered. c. Should the tenants pay for lawn moving and weed removal?
- The landlord has claimed $140.00 for lawn mowing and removal of growth from fences and stones.
- The tenants vacated the property on 18 December. The next tenancy began on 10 January. That is a period of over three weeks. Mid December to mid January is a period when lawns and weeds grow rapidly. It was reasonable for the landlord to have a contractor cut the lawns again before the new tenant moved in. The tenants are responsible to pay for these expenses up to the time the new tenancy began. d. Should the tenants pay for cleaning?
- The landlord has claimed that the tenants did not leave the premises reasonably clean. He has provided photos in support of the claim. He has submitted a contractor’s invoice for $780.00 for cleaning.
- The tenants stated that they left the premises reasonably clean and the work carried out was more than was necessary to make the premises reasonably clean.
- The photographs show some areas of the premises that were not reasonably clean. However the invoice from Final Touch Cleaning includes cleaning to make the premises perfectly clean. The tenants do not have to leave the premises perfectly clean.
- The invoice gives good detail of the cleaning that was carried out but does not state the total time taken nor itemize the time for each area cleaned. I have assessed what I believe is a reasonable charge for cleaning. The order is that the tenants pay 60% of the amount charged, $468.00. e. Should the tenants pay for repairs?
- The landlord has claimed $632.50 for repairs for tenant damage during the tenancy. The bulk of the work relates to securing curtain rods and patching and painting walls where items have been hung on walls.
- The landlord has supplied photos of curtain rods where the bracket has come away from the wall. The photos show that the gib board screws were insufficient to secure the brackets. The landlord submitted that the tenants rough handling has caused the gib screw to be pulled from the gib. I note that the repairer changed the curtain bracket fixing to spring toggles which are much more secure because they cover a greater area at the back of the gib.
- Having considered the cause of the failure of the curtain brackets I accept that they had to be repaired because of fair wear and tear.
- The holes in the walls relate to hanging art. Tenants are permitted to use premises for their enjoyment in the same way that an owner would use premises. Holes in walls for hanging pictures is normal use. Owners can also expect some marks on walls after a two and a half year tenancy. Having considered the evidence I am not persuaded that the tenants have caused damage. There is evidence of wear and tear. Tenants are not responsible to pay for work to rectify wear and tear issues. f. Should the tenants pay Exemplary damages?
- The landlord has request an order that the tenants pay exemplary damages under section 42B(6) of the Residential Tenancies Act 1986. That subsection provides that it is an unlawful act for tenants not to reinstate premises at the end of a tenancy following minor change. The landlord considered the holes in the walls from artwork to be minor changes.
- This part of the landlord’s claim borders on being frivolous and vexatious. A minor change is defined in 42B(2) as follows: a minor change is any fixture, renovation, alteration, or addition of or to the premises
- The tenants did not carry out any minor change to the premises. The claim for exemplary damages is dismissed. B. The tenants’ cross application
- The tenants have claimed a refund of the damaged garage door excess, a refund of rent rent reduction and the filing fee. g. Should the landlord refund the excess the tenants paid for garage door repairs?
- The tenants have claimed a refund of the $1,000.00 insurance excess paid to the landlord for damage to the garage door. They have claimed that the damage to the door was not the result of their careless damage. They believe the door was faulty and this was the reason it was damaged by the car.
- It is possible that the door stopped before being fully open and it is also possible that the car began reversing before the door was fully open. The door had been serviced a week before the tenant reversed into the door. The tenants have not provided sufficient technical evidence to prove that the door was faulty at the time the car reversed into it. The claim for a full refund of the excess is declined for this reason.
- More importantly, the claim is also declined because the tenants agreed to pay the excess and so became estopped from changing their position.. Estoppel is a principal of law which precludes a person from asserting something contrary to what is implied by a previous action. The tenants’ payment of the excess implies liability. They cannot change their position a year later. f. Did the landlord claim the correct excess amount from the tenants?
- After the garage door damage insurance claim the landlord required the tenants to pay the $1,000.00 excess. The landlord provided evidence to prove that this was the amount the landlord was charged by the insurer.
- When tenancy began, the agreement was for a two year term. The landlord stated in the tenancy agreement that the insurance excess was $500.00. The damage to the door happened within the two year term. The landlord did not inform the tenant that the insurance excess had changed from $500.00 to $1,000.00.
- Section 13A of the Residential Tenancies Act 1986 sets out the information that a landlord must include in a residential tenancy agreement. The list of information required includes the insurance excess ss.13A(2). Subsection 13A(4) provides: If anything changes so that the information that was included in the tenancy agreement in accordance with subsection (2) or that was provided in accordance with subsection (3) or this subsection is no longer correct, the landlord must provide the correct information in writing to the tenant within a reasonable time after the landlord becomes aware of the change.
- I am satisfied that the landlord did not comply with 13A(4) when the landlord’s insurance excess increased. Therefore, the tenant cannot be liable for more than the $500.00 specified in the tenancy agreement.
- The Tribunal orders the refund of the $500.00 overpayment of the excess.
Should rent be refunded to the tenants?
- The tenants have applied for an order from the Tribunal for rent for to be refunded for the period after they gave possession to the landlord. Their grounds for this request is that the landlord did not act expeditiously to find new tenants. They claimed that the property could have been advertised earlier. The claimed that they gave two months notice to the landlord.
- The Residential Tenancies Act 1986 does not specify responsibilities that a landlord has to fill a vacancy caused by tenants not completing their agreement to remain in the tenancy for the period that they committed to. If the tenants were not happy with the landlord controlling the process of finding new tenants, they were within their rights to advertise and find the new tenants themselves.
- It should also be noted that the tenants’ claim that they gave two months notice to the landlord is incorrect. A request to break a fixed term is not “giving notice”.
- The dates that are most significant regarding whether the landlord acted expeditiously are set out in paragraph 2 above. I repeat them here. On 14 October 2024 the tenants asked to reduce the fixed term. The landlord agreed to reduce the fixed term on the condition that the tenants accepted the conditions set out in his email. On 27 October the tenants emailed confirming they accepted the landlord’s conditions for them reducing the fixed term. Therefore, the date that the parties reached agreement about reducing the fixed term was 27 October. On 4 November the tenants emailed the property manager stating that they were not sure when he “intended to market the property, but perhaps we are at that point now”. The landlord followed the tenants’ instruction to advertise and had arranged a new tenancy within a couple of weeks of the tenants’ instruction. The tenants are fortunate that the property manager assisted them to reduce their contractual obligation and have no grounds for any complaint regarding him acting expeditiously. There are no grounds for rent to be refunded. Filing Fee
- Because both parties have been partly successful with their applications, no order is made for either party to pay the filing fee to the other party.