Tenancy Tribunal Dismisses Landlord's Water Charges Claim

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[2025] NZTT 5152552

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted] [NAME]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. By consent [NAME] is joined as a tenant party to these proceedings.

2. [NAME] and [NAME] must pay [COMPANY] as Agent for [NAME] $222.57 immediately, calculated as shown in the table below.

3. The [COMPANY] is to pay the bond of $3,000.00 (6426180-015) to [COMPANY] as Agent for [NAME] immediately.

Description Landlord Water rates to end of tenancy $228.07 Carpet Cleaning $310.50 Lawns $92.00 Repairs: Carpet excess $1,875.00 Repairs: Paintwork $690.00 Filing fee reimbursement $27.00 Total award $3,222.57 Minus Bond $3,000.00 Total payable by Tenant to Landlord $222.57

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Reasons:

1. Both parties attended the hearing which took place by teleconference.

2. The landlord has applied for water arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for water rates?

3. The tenancy ended on 13 December 2024. In December 2024 the tenants were sent water invoices for the billing period 27 September 2023 to 26 March 2024 ($333.39), 26 March 2024 to 16 September 2024 ($256.38) and the final reading from 16 September 2024 to 17 December 2024 ($99.88).

4. After considering the evidence it is clear that the tenants were not billed any water charges from September 2023 until December 2024.

5. Section 39 of The Residential Tenancies Act 1986 provides that the landlord is responsible for all outgoings that apply whether or not the premises is occupied. That is why the landlord is responsible for fixed charges on the water bills. The tenant is responsible for all outgoings in respect of the tenancy premises that are exclusively attributable to the tenant’s occupation of the premises or the tenant’s use of the facilities.

6. In his decision in [NAME] v [NAME] 2005-004-1583 16/3/2006 in the District Court in Auckland, Judge McElrea, observes that there is an implied term in a tenancy agreement that the landlord ought to provide accounts to the tenant at regular intervals so as to enable payment to be made. At paragraph 13 he states “… in my view, the implied term which I read into the Act and into this agreement is necessary in order to make the clause a workable one from a commercial point of view, and in order to decide this matter according to the substantial merits and justice of the case [as provided by s85(2) of the Residential Tenancies Act 1986].

7. In the facts of this case the tenants were supplied with an invoice over eight months late and were then asked to pay three invoices at once which related to usage dating back over one year. The [NAME] manager was aware that nothing was being charged as the tenants were requesting invoices but advised that due to difficulties with the owner the invoices were not supplied.

8. Having considered the facts in this case in light of the decision of the District Court I am dismissing the charges claimed for September 2023 to March 2024 and reduce the invoice dated 1 October 2024 by half. The tenants are ordered to pay balance of the water charges in the sum of $228.07.

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

9. 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.

10. The landlord claimed that the tenant did not leave the premises reasonably clean and tidy as the carpets and bathroom needed further cleaning and the lawns needed mowing.

11. The tenants disputed the claims and stated that they cleaned the premises and the lawns were mowed one week before the tenancy ended.

12. Both parties provided end of tenancy photographs and the landlord also provided a copy of the entry inspection.

13. It is not always easy to define what "reasonably clean and tidy" means. However, a tenant is not required to leave a [NAME] immaculate 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. It is common that a landlord wishes to clean to an extra level so that they can re-tenant the premises, that is a business decision that a landlord makes at their cost.

14. Having considered the submissions and the photographs I find the following:

(a)I am not satisfied that the landlord has proved on the balance of probabilities that the bathroom was not left reasonably clean and tidy. The landlord pointed out water marks on the shower glass and tiles and to marks on the vanity plug area. However, the entry inspection also refers to water marks bottom of the glass door and wipe marks on glass wall. I am satisfied that the bathroom whilst not immaculate was left reasonably clean and tidy.

(b)I am satisfied that the lawns needed mowing. The tenants advised that they had the lawns mowed a week prior to moving out. The exit photographs show the lawns needed some mowing. The landlord did not get the lawns mowed until one week later and the amount sought is half of the invoice in recognition of this. Payment of half the invoice is ordered as sought.

(c)The tenants had dogs at the premises with the landlord consent. Although they were outside dogs the tenants stated that rarely the puppy was inside and on at least one occasion at the beginning of the tenancy the larger dog was inside. Having considered the photographs of the marks on the carpet, the submissions, and the carpet cleaning invoice I am satisfied that the carpets needed to be cleaned and the amount is ordered as sought.

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Are the tenants responsible for the damage to the premises?

15. 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.

16. 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.

17. 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 [NAME] is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

18. 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.

19. The landlord claims that the following damage was caused during the tenancy as follows: damage to carpets, damage to paintwork, heatpump remote batteries missing. The Tribunal will consider each of these claims in turn.

20. Carpet.

(a)The landlord claimed that there was damage to carpets due to stains and smell from dogs that could not be removed by the cleaning. They sought reimbursement of the insurance excess for the cost of replacement in three rooms. In support of this claim the landlord provided a copy of the entry inspection report, exit inspection report with photos, a copy of the carpet cleaning invoice, a copy of the breakdown from the insurance company advising that $750 excess was charged for three rooms being the living room and two bedrooms and the agent gave oral evidence of observing the smell of dogs in the premises.

(b)The tenants agreed that there was a dog urine stain in the spare bedroom and that there was a coffee stain in their son’s bedroom but disputed there was damage to the living room carpet on the basis that there was already existing damage in the dining room and there was wear and tear to the carpet beside the ranch slider as it was a high traffic area due to being the main entrance. The

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tenants provided photographs taken at the end of the tenancy. Having considered the evidence I am satisfied there was damage beyond fair wear and tear in two bedrooms during the tenancy.

(c)The tenants claim that there was an existing mark in the dining area which was pointed out to the [NAME] manager but no written record of this is available. The entry inspection report does record that there was a mark on the carpet in the living room from a mat. The tenants lived in the premises for three years. Having considered the evidence and the marks on the carpet in the living room I find that there is damage, however, as there was some existing damage in the living room and some wear and tear I find that that the tenants are liable for the insurance excess for the two bedrooms and half of the excess for the living area totalling $1875.00.

21. Paintwork.

(a)The landlord seeks compensation for damage to paintwork due to touch up repairs by tenants that did not colour match the existing paint.

(b)There were marks on the walls in the hallway, toilet and garage. The tenants acknowledged that these were caused during the tenancy and stated that they arranged a painter to repair the damage. Unfortunately, although the painter attempted to colour match the paint did not match the existing paintwork and this is evident in the photographs. I find that the landlord has proved damage to the paintwork beyond fair wear and tear.

(c)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. The parties advised that the premises are approximately five years old and were occupied for two years prior to this tenancy. Therefore, I have depreciated the painting invoice of $920 [COMPANY] by 25 percent and order the tenants to pay $690.00 towards the cost of painting.

22. Heatpump remote batteries.

The landlord sought the cost of replacing the heat pump batteries. The tenants stated that these were removed as the heatpump did not work and they did not want the batteries to corrode in the remote. The landlord stated they were not aware of any problem with the heatpump but also could not confirm that the batteries were new at the beginning of the tenancy. Therefore, I am not satisfied that this claim is proved on the balance of probabilities.

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Filing fee

23. [COMPANY] as Agent for [NAME] has substantially succeeded with the claim I have reimbursed the filing fee.

[NAME]

14 April 2025

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Please read carefully:

Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or [NAME] this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your [NAME].

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: