What was the outcome of Tenancy Tribunal case 5324940?

The tribunal order states: Justin Blair Emmer to pay Fava Realty Limited As Agent For Gary And Helen

How much money was awarded in case 5324940?

Cleaning: $200.00 awarded to landlord; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5324940?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5324940?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13159813-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5324940?

The tribunal order states: Justin Blair Emmer to pay Fava Realty Limited As Agent For Gary And Helen

How much money was awarded in case 5324940?

Cleaning: $200.00 awarded to landlord; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5324940?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5324940?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13159813-Tribunal_Order.pdf.

106A Godden Crescent, Mission Bay, Auckland 1071 Tenancy Tribunal Case 5324940 — Cleanliness

Claims and awards in Tenancy Tribunal application 5324940 — net $172.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning	$200.00		Cleaning
Filing fee reimbursement		$28.00	Filing fee reimbursement
Total award	$200.00	$28.00
Net award	$172.00
Bond	$12,000.00
Total payable by Tenant to Landlord	$172.00

Order

Justin Blair Emmer to pay Fava Realty Limited As Agent For Gary And Helen Napier $172.00 from the bond, calculated as shown in table below.

The Bond Centre is to pay the bond of $12,000.00 (3365793-010) immediately apportioned as follows: Fava Realty Limited As Agent For Gary And Helen Napier: $172.00 Justin Blair Emmer: $11,828.00

Reasons

Both parties attended the hearings.
The tenant had lodged an application seeking the return of his bond.
The landlord has counterclaimed, seeking compensation from the bond for tenant failures at vacate.
The landlord application originated from the owners, rather than their agent. As a preliminary matter and by mutual agreement, Fava Realty Limited as agent for the named owners was added.
By the date of the final hearing, the landlord compensation claims were confirmed as cleaning ($2,328.75), the insurance excess for carpet replacement ($750.00), and a replacement fridge ($3,620.66). A claim for damage to a bathroom benchtop was withdrawn.
The owners live overseas and relied on their agent and others in their assessment of the premises at the end of the tenancy.
Given the ending of the tenancy was managed by the agent, and the views at that time did not reflect the later claims for costs as made by the owner, I had to consider if the owners have been bound by any prior confirmation by the agent that the premises were deemed in an acceptable condition. If so, the owner cannot later claim for issues that were or should have been apparent at the time of the final inspection.
A report to the owners, with photos, was sent after the exit inspection by their agent.
The bond was not returned in full to the tenant.
The unclean condition of the fridge, ovens and kitchen drawers were noted by the agent at exit but, on balance, not pursued by him given the overall circumstances of the tenancy. It is not clear this was expressed clearly to both the owner and tenant at the time, such that the owners might be estopped from lodging their application, as they did.
Given the above, I do not consider the owners were estopped from pursuing their claims in this instance.
This jurisdiction determines disputes between landlords and tenants. Any dispute between landlords, be it owner and any agent, do not fall under this Tribunal’s jurisdiction.

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 (“RTA”)
The statutory requirement is that tenants leave the premises in a reasonably clean and reasonably tidy condition. The RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. What is required is that premises including the stove and bathroom fittings are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, ceilings lightshades, skirtings, behind appliances or the outside of the house. It is common that a landlord wishes to clean to this “extra” level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The landlord claimed the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
A cleaner was engaged at an invoiced cost of $2,328.75. A detailed list of tasks completed was included. This effort reflected feedback to the owners from their listing agent who provided a series of photos. Some of these were later provided to the Tribunal, along with the agent email and photos from that time.
That the premises was to be prepared for sale was accepted. Such a decision is always a factor that should be considered in any decision to engage commercial contractors after a tenancy.
An end of tenancy clean was conducted by a cleaner recommended by the agent. The agent subsequently circled back with the cleaner to validate his approximation of $200.00 for the cost of cleaning the areas he identified This was confirmed. I note the tenant has previously accepted some areas were missed. His dispute with the claim was the quantum.
The agent’s stance is that the cleaning required was limited and he forewent any assertion of the need for the tenant to address that at the time given the tenant’s cooperation during the tenancy had reduced possible costs to the owner. He also factored some $600,000 of rent paid during the tenancy (rent was $3000.00 per week).
I accept the listing agent and builder have expressed their own views of what is reasonably clean vis-à-vis this vacated premises, being higher than the agent. The owners appear to have accepted that advice in preference to their agent.
Having considered the evidence and submissions, I align with the lower cost assessment of the agent. The owners citing of the cost of cleaning after the previous tenancy, not that dissimilar to the cost they incurred, as justification here is not considered a valid comparison. As I said at the hearing, the frequency versus magnitude of tasks such as cleaning will see significant but legitimate variations. It is accepted that during this tenancy a regular cleaner was scheduled every two weeks and a final clean was conducted by a contractor as recommended to the tenant by the agent.
I consider cleaning as undertaken was above the required effort to return the premises to a reasonably clean and tidy condition for a tenant, more than likely driven by the intended sale of the property.
Respectfully, the views of the listing agent and builder regarding the standard for reasonably clean and tidy, while noted, do not significantly inform my determination of what is in many way a subjective determination. I must be objective after hearing from all parties and considering the facts as considered more than likely correct.
I accept the evidence and estimate of the agent of $200.00 as a basis of determining the appropriate compensation to the owners for the limited areas missed during the final exit clean. This seems reasonable. That sum is awarded.

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.
A tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA.
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 following damage was caused during the tenancy: Carpet staining in the Media Room
The premises carpeted areas were considered stained. The owners arranged carpet cleaning that removed much of the staining elsewhere in the house but in the Media TV Room the staining was permanent, and a successful insurance claim lodged for replacement carpet. Compensation for the insurance excess of $750.00 was sought.
Photos taken at entry show several pre-existing stains in this room. Such damage in a high traffic area associated with food and drink is not unexpected and those stains were accepted by the tenant.
By the end of the tenancy, further stains were apparent. The agent considered the carpet was still suitable for a further tenancy but he accepted replacement of the carpet for the purposes of a sale could be fair.
I am not satisfied the landlord has been able to establish the carpet damage, such that the replacement was made, was due to any tenant careless or intentional damage during this tenancy. Damage to the fridge
The water dispenser area of one door developed some form of surface corrosion. The issue was aesthetic rather than functional but expanded over time. The owners believed they should have been advised sooner of this so they could have mitigated or remedied it.
The tenant and agent agreed that the deteriorating condition of the fridge water dispensing area was known. I consider the tenant met his obligations to advise the landlord as evidenced in text messages in January 2023 between him and the agent. The tenant did not request any remedial action at that time given the continued function of the appliance.
Given the above, I do not consider the tenant has failed in his obligations in any such a way to be deemed liable for the damage and subsequent fridge replacement cost incurred by the owners.
The two compensation claims for damages are dismissed. Depreciation
Even if wrong in dismissing either or both of the damage claims, there would have been a need to take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached his obligations, and should not be better or worse off. It is considered more than likely that such depreciation, if applied, would have determined there was no actual loss to be compensated as both were at or near the end of economic life. Filing fee
Because Justin Blair Emmer has substantially succeeded with his claim I have reimbursed his filing fee. His previous offer to settle, and his adamant rejection of the bulk of the landlord claims, have been validated.

Claims and awards in Tenancy Tribunal application 5324940 — net $172.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning	$200.00		Cleaning
Filing fee reimbursement		$28.00	Filing fee reimbursement
Total award	$200.00	$28.00
Net award	$172.00
Bond	$12,000.00
Total payable by Tenant to Landlord	$172.00

Order

Justin Blair Emmer to pay Fava Realty Limited As Agent For Gary And Helen Napier $172.00 from the bond, calculated as shown in table below.

The Bond Centre is to pay the bond of $12,000.00 (3365793-010) immediately apportioned as follows: Fava Realty Limited As Agent For Gary And Helen Napier: $172.00 Justin Blair Emmer: $11,828.00

Reasons

Both parties attended the hearings.
The tenant had lodged an application seeking the return of his bond.
The landlord has counterclaimed, seeking compensation from the bond for tenant failures at vacate.
The landlord application originated from the owners, rather than their agent. As a preliminary matter and by mutual agreement, Fava Realty Limited as agent for the named owners was added.
By the date of the final hearing, the landlord compensation claims were confirmed as cleaning ($2,328.75), the insurance excess for carpet replacement ($750.00), and a replacement fridge ($3,620.66). A claim for damage to a bathroom benchtop was withdrawn.
The owners live overseas and relied on their agent and others in their assessment of the premises at the end of the tenancy.
Given the ending of the tenancy was managed by the agent, and the views at that time did not reflect the later claims for costs as made by the owner, I had to consider if the owners have been bound by any prior confirmation by the agent that the premises were deemed in an acceptable condition. If so, the owner cannot later claim for issues that were or should have been apparent at the time of the final inspection.
A report to the owners, with photos, was sent after the exit inspection by their agent.
The bond was not returned in full to the tenant.
The unclean condition of the fridge, ovens and kitchen drawers were noted by the agent at exit but, on balance, not pursued by him given the overall circumstances of the tenancy. It is not clear this was expressed clearly to both the owner and tenant at the time, such that the owners might be estopped from lodging their application, as they did.
Given the above, I do not consider the owners were estopped from pursuing their claims in this instance.
This jurisdiction determines disputes between landlords and tenants. Any dispute between landlords, be it owner and any agent, do not fall under this Tribunal’s jurisdiction.

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 (“RTA”)
The statutory requirement is that tenants leave the premises in a reasonably clean and reasonably tidy condition. The RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. What is required is that premises including the stove and bathroom fittings are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, ceilings lightshades, skirtings, behind appliances or the outside of the house. It is common that a landlord wishes to clean to this “extra” level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The landlord claimed the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
A cleaner was engaged at an invoiced cost of $2,328.75. A detailed list of tasks completed was included. This effort reflected feedback to the owners from their listing agent who provided a series of photos. Some of these were later provided to the Tribunal, along with the agent email and photos from that time.
That the premises was to be prepared for sale was accepted. Such a decision is always a factor that should be considered in any decision to engage commercial contractors after a tenancy.
An end of tenancy clean was conducted by a cleaner recommended by the agent. The agent subsequently circled back with the cleaner to validate his approximation of $200.00 for the cost of cleaning the areas he identified This was confirmed. I note the tenant has previously accepted some areas were missed. His dispute with the claim was the quantum.
The agent’s stance is that the cleaning required was limited and he forewent any assertion of the need for the tenant to address that at the time given the tenant’s cooperation during the tenancy had reduced possible costs to the owner. He also factored some $600,000 of rent paid during the tenancy (rent was $3000.00 per week).
I accept the listing agent and builder have expressed their own views of what is reasonably clean vis-à-vis this vacated premises, being higher than the agent. The owners appear to have accepted that advice in preference to their agent.
Having considered the evidence and submissions, I align with the lower cost assessment of the agent. The owners citing of the cost of cleaning after the previous tenancy, not that dissimilar to the cost they incurred, as justification here is not considered a valid comparison. As I said at the hearing, the frequency versus magnitude of tasks such as cleaning will see significant but legitimate variations. It is accepted that during this tenancy a regular cleaner was scheduled every two weeks and a final clean was conducted by a contractor as recommended to the tenant by the agent.
I consider cleaning as undertaken was above the required effort to return the premises to a reasonably clean and tidy condition for a tenant, more than likely driven by the intended sale of the property.
Respectfully, the views of the listing agent and builder regarding the standard for reasonably clean and tidy, while noted, do not significantly inform my determination of what is in many way a subjective determination. I must be objective after hearing from all parties and considering the facts as considered more than likely correct.
I accept the evidence and estimate of the agent of $200.00 as a basis of determining the appropriate compensation to the owners for the limited areas missed during the final exit clean. This seems reasonable. That sum is awarded.

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.
A tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA.
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 following damage was caused during the tenancy: Carpet staining in the Media Room
The premises carpeted areas were considered stained. The owners arranged carpet cleaning that removed much of the staining elsewhere in the house but in the Media TV Room the staining was permanent, and a successful insurance claim lodged for replacement carpet. Compensation for the insurance excess of $750.00 was sought.
Photos taken at entry show several pre-existing stains in this room. Such damage in a high traffic area associated with food and drink is not unexpected and those stains were accepted by the tenant.
By the end of the tenancy, further stains were apparent. The agent considered the carpet was still suitable for a further tenancy but he accepted replacement of the carpet for the purposes of a sale could be fair.
I am not satisfied the landlord has been able to establish the carpet damage, such that the replacement was made, was due to any tenant careless or intentional damage during this tenancy. Damage to the fridge
The water dispenser area of one door developed some form of surface corrosion. The issue was aesthetic rather than functional but expanded over time. The owners believed they should have been advised sooner of this so they could have mitigated or remedied it.
The tenant and agent agreed that the deteriorating condition of the fridge water dispensing area was known. I consider the tenant met his obligations to advise the landlord as evidenced in text messages in January 2023 between him and the agent. The tenant did not request any remedial action at that time given the continued function of the appliance.
Given the above, I do not consider the tenant has failed in his obligations in any such a way to be deemed liable for the damage and subsequent fridge replacement cost incurred by the owners.
The two compensation claims for damages are dismissed. Depreciation
Even if wrong in dismissing either or both of the damage claims, there would have been a need to take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached his obligations, and should not be better or worse off. It is considered more than likely that such depreciation, if applied, would have determined there was no actual loss to be compensated as both were at or near the end of economic life. Filing fee
Because Justin Blair Emmer has substantially succeeded with his claim I have reimbursed his filing fee. His previous offer to settle, and his adamant rejection of the bulk of the landlord claims, have been validated.

Tenancy Tribunal case 5324940 — Cleanliness at 106A Godden Crescent, Mission Bay, Auckland 1071

At a glance

Tenancy Tribunal case 5324940 — Cleanliness at 106A Godden Crescent, Mission Bay, Auckland 1071

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions