Published tribunal order
Tenancy Tribunal case 5420979 — Cleanliness at 55A Nigel Road, Browns Bay, Auckland 0630
Published 13 April 2026 · Application 5420979
Landlord favoured
- Cleanliness
Order
- The Tribunal declares that it has jurisdiction to determine the tenants’ application.
- Jusuk Kang must immediately pay Yegang (Nigel) Kim and Eunjae Jo $775.50 from the bond, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- The tenants and the Tribunal were assisted by a Korean interpreter.
- The tenants have applied for refund of the $1,296.87 remainder of their $1,470.00 bond, and reimbursement of the filing fee following the end of the tenancy.
- The landlord objected to the Tenancy Tribunal hearing the tenants claim as he states that it has no jurisdiction over the relationship, which he claims was one of flatmates residing in the owner’s home with two other flatmates, being five occupants in total. The parties had signed a flat sharing agreement that clearly states the Disputes Tribunal has exclusive jurisdiction over disputes that arise out of the flat mate relationship.
RELEVANT LEGAL CONSIDERATIONS
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
- That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is 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.
- In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any 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. If any claim is not established to the balance of probability, it must be dismissed.
- The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. Some evidence referred to may be summarised or paraphrased. General legal principles in relation to the award of compensation or exemplary damages
- The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Factors such as the loss of amenity, stress and inconvenience suffered by the party that has proven the breach are considered when deciding the quantum of any compensation awarded.
- Exemplary damages can also be awarded for breaches listed in Schedule 1A of the RTA, provided the Tribunal is satisfied that the breach was intentional. Exemplary damages are a penalty designed to deter parties from intentionally engaging in the kind of behavioural conduct provided for in Schedule 1A of the RTA. Section 109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage for any breach where that application is made more than 12 months after the date of commission of the unlawful act.
JURISDICTION
Background
- The landlord confirmed: a. He is the owner of the two-storey premise that he, the two applicants and two other flatmates lived in for the duration of their tenancy; b. The applicants lived in the lower level of the premise, and had exclusive rights to occupy a bedroom, a bathroom, a kitchenette/laundry and another room. They had a ranch slider that allowed them access to the yard, but this was not a separate entrance from outside the property to the exclusive areas of the premise they occupied.; c. The hallway and garage downstairs was a common area the landlord and his other two flatmates used to access the garage; d. The applicants shared the main entrance to the premise with the landlord and the other two flatmates and use of the common hallway downstairs to enter their room but did not share any other facilities with the landlord and the other two flatmates; and e. The rent the applicants paid included internet, water and gas, but the area had its own separate power meter reader. The landlord billed the tenants for the actual power they used based on the meter reader using the power charge rates on the main power bill.
- The applicants agreed with the landlord’s summary of the living arrangements and confirmed that area they lived was essentially a self-contained section of the downstairs area of the premise, that had a small washing machine and kitchenette. The only other areas on that level of the premise was the shared hallway and the landlord’s garage.
- The landlord said the parties shared meals together sometimes. The applicants confirmed they were invited to dinner twice during their tenancy and would not go upstairs to dinner unless invited and would never use the upstairs facilities at any time. Relevant law
- The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 applies.
- The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on Ms Baker.
- Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.
- Section 2 RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises;
- Section 4 RTA provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
- The exceptions to the RTA are contained in section 5. Section 5(1)(k) specifically excludes arrangements where the premises are “(i) intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii) are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement”.
- The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. Separate household units
- As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
- One of the types of buildings categorised in the Building Act is called a “household unit”. A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”.
- The Tenancy Tribunal deals predominantly with household units (with the exception of boarding houses).
- The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis, Tan and Caroto [2021] NZHC 1265.
- In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the RTA did not apply (see section 5(n) exclusion).
- However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
- Analysing the actual situation, the Tribunal determined that the RTA did apply and that the building consisted of two separate and distinct household units.
- The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
- The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision. Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
- Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
- The self-contained nature of the granny flat was decisive in Harding v Shellevis. However, even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non- exclusive use of the tenant. A couple of older Tribunal authorities illustrate this principle.
- In Whitelock v McConway (Tenancy Tribunal Blenheim, 13 July 1995) the tenant occupied a sleepout a couple of meters from the main home occupied by the landlord. This comprised a bedroom, shower, toilet, and wash house attached to the garage. The tenant used a shared kitchen to prepare his breakfast and lunch.
- Evening meals were mainly provided by the landlord. The landlord regarded the tenant as a boarder with free access to the facilities in the home.
- The tenant was sharing kitchen, bathroom and laundry facilities with the landlord.
- The Tribunal held that the area occupied by the tenant was part of the family home, because it did not have separate cooking facilities and contained the only shower and laundry. The tenant’s room was part of the landlord’s home and was excluded from jurisdiction pursuant to section 5(1)(n) RTA.
- In Barnett v Dempsey (Tenancy Tribunal Auckland, 13 June 2003, TT 790/03) the tenant lived in a room in a converted garage a few meters from house occupied by the landlord and her daughter. The tenant had a fridge and a cooktop. The tenant had to wash his dishes in the kitchen of the house. He had a key to gain access to the house to use the shower and toilet. The tenant only used the lounge in the house when invited to do so by the landlord.
- The Tribunal held that, despite the sharing of facilities, the RTA was not excluded.
- The tenant’s room comprised “premises” for the purpose of the RTA: “That the premises did not have their own toilet and washing facilities is not...fatal to their [sic] being “premises” because the definition of “facilities” in the Act appears to envisage a situation where other facilities are to be provided to the tenant by the landlord “for the use and enjoyment of the tenant, otherwise than as a part of the premises that are the subject of the agreement”, such as toilet and washing facilities...”.
- These decisions were decided on their own facts. But they show that the Tribunal is sometimes required to assess whether the extent of shared facilities or spaces means the living arrangements are to be properly characterised as a tenancy, or as a flat share (or boarding) arrangement. Analysis
- In the circumstances of this case and the living arrangements as outlined by both parties at the hearing, I find that Mr Kang meets the definition of a landlord, in that he has leased residential premises to Mr Kim and Ms Jo in consideration of rent.
- Mr Kim and Ms Jo fall within the definition of being a tenant, given that they are the grantee of a residential premises. Mr Kim and Ms Jo have the exclusive right to occupy the self-contained area of the lower level of the premise (excluding the hallway and garage) on the basis of the payment of rent. No other person(s) occupied this self-contained area or was entitled to occupy that area.
- There was a formal written flat sharing agreement, which the landlord says proves the parties intended it to be a flat sharing arrangement. The parties intent is not determinative of the nature of the relationship, although it is one of the factors I can take into account when determining the true nature of the relationship.
- The evidence establishing a flatmate arrangement falls well short. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case, the downstairs bedroom, other room, bathroom and kitchenette unit) rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a head tenant who would have a contractual relationship with the landlord. This is not a case where Mr Kim and Ms Jo was only residing in self-contained area of the lower level of the premise by way of licence. They had exclusive rights to occupy this self- contained area.
- In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. The court held that: “...the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord. “By ‘flatmate’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
- There was no evidence Mr Kim and Ms Jo had access to shared or common areas (including cooking) in the second level of the house, other than the shared entrance from outside and the shared hallway, or that Mr Kim and Ms Jo had a right to occupy areas used by Mr Kang. There was no evidence of a co- operative arrangement between the parties’ sharing facilities in this case, such that a flatting arrangement might exist. They did have some interaction, but they lived independently.
- The evidence supports a finding that Mr Kim and Ms Jo were renting a separate largely self-contained area of the lower level of the premise with cooking and bathroom facilities.
- As noted above, even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the nonexclusive use of the tenant.
- In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the RTA is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
- The next matter to consider is whether or not section 5(1)(n) RTA operates to exclude the agreement from the operation of the RTA.
- The District Court in Musson v Dobrisek DC Lower Hutt, CIV- 2006-032-36, 5 May 2006, held that the correct question for the Tribunal to answer when considering section 5(1)(n) RTA is: “Is the principal use of these premises as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owners’ family.”
- If the house as a whole was the relevant “premises” then I would easily conclude that section 5(1)(n) applied in this case. However, I find that is not the case, rather I consider that the self-contained area is a separate premise to the rest of the house.
- The Court has previously determined in Kahi v Lucus HC Auckland, 81/96, 23 September 1996 and Harding v Schellevis & Ors that there can be a separate premises within a larger premises. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
- While this was physically one building, there were two separate and distinct households within that building. Mr Kim and Ms Jo had their own separate premise that was not shared with the landlord and his two flatmates. They did not utilise the main area where Mr Kang and the two flatmates were living. The house as a whole was not shared, and there was a clear separation. Mr Kim and Ms Jo had their own separate living space that Mr Kang understood he could not enter without consent. Mr Kim and Ms Jo treated Mr Kang and his two flatmates as privately occupying the main part of the house and did not enter this area without consent or invitation. There were 2 separate households, each with exclusive possession, rather than a sharing of the house and its facilities.
- Accordingly, the relevant “premises” for the purposes of section 5(1)(n) is the self-contained area of the lower level of the house only. The question, then, is whether the self-contained area was used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
- It is clear that the self-contained area in the lower level of the premise was not used principally as a place of residence for Mr Kang as the landlord or a member of his family.
- Bearing in mind the above, my finding in this proceeding is that Mr Kim and Ms Jo occupied the largely self-contained area in the lower level of the premise as a separate household.
- I find that there was a residential tenancy of the self-contained area to which the RTA applies. This was not a flatmate sharing arrangement. The jurisdiction of the Tribunal is not excluded by section 5(1)(n) RTA.
- That said, I am mindful that this arrangement is not what Mr Kang anticipated at the time of entering into the flat sharing agreement and the finding that this is a residential tenancy will have significant flow on effects for both parties.
TENANTS CLAIMS
Should the tenants receive the remainder of their bond back?
- The tenants were aware at the end of their tenancy that the landlord was making a claim against their bond for damages to the premise he says they caused during their tenancy due to their careless acts or omissions and that they failed to leave the premise in a reasonably clean and tidy condition at the end of the tenancy.
- The tenants deny causing careless damage to the premise and say they cleaned it before they moved out. They do however accept it required further cleaning to get it to a reasonably clean and tidy condition.
- Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. start of the tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant.
- In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
- Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”. A. Did the tenants 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.
- The landlord says the tenants did not leave the premises reasonably clean and tidy. Specifically, he provided photographs of the bedroom before and after the tenancy. These photographs show the bedroom clean and tidy and free from any evidence of moisture and mould. The end of tenancy photographs show mould on all the window frames and curtains and dirty windows, sills and carpet. The landlord also produced a text message from the tenants that proves they accepted they had not left the premise in a reasonably clean condition, that they could not come back to complete more cleaning, and they agreed to the landlord arrange a cleaner and invoicing them for the cost.
- I am satisfied the landlord has proven on the balance of probabilities that the tenants left the house in a condition that required further cleaning and are liable for the $549.37 it cost the landlord to have a contractor undertake this work.
- The amounts ordered are proved. B. Are the tenants 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 2 Westwood v Western [1994] DCR 759. 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 tenants’ are responsible for water damage to the bathroom vanity draw front and for water damage to the windowsills, frames and skirting boards caused by the tenants careless acts or omissions during the tenancy.
- The tenants say this damage is fair wear and tear. The landlord says the damage is more than fair wear and tear.
- The landlord was unable to produce sufficient evidence to prove his claims on the balance of probabilities as his photographs were scant and the exit photographs to close to see what they were of or to match them against entry inspection photographs as a comparison.
- The landlord’s claims for damages are dismissed for the reasons set out above. C. How much of the remaining bond is owed to the tenant?
- For the reasons set out in A and B above, the tenants will be awarded back $775.50 of the remaining bond held by the landlord, being the $1,296.87 withheld, minus the $549.37 for cleaning costs, with the $28.00 filing fee deducted. Reimbursement of the filing fee
- Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
- Because the tenants have substantially succeeded with their claims, I must reimburse the filing fee.