Tenancy Tribunal Orders Tenants to Pay for Cleaning and Damages

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[2025] NZTT 5062588, 5067353

TENANCY TRIBUNAL AT CHRISTCHURCH | TE TARAIPIUNARA RETIHANGA KI ŌTAUTAHI

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] must pay [NAME] and [NAME] $1,326.00 immediately, calculated as shown in table below.

Description Landlord Tenant Cleaning $180.00 Carpet Cleaning $100.00 Carpet damage - insurance excess $1,600.00 Curtain damage $60.00 Wall damage - insurance excess $1,200.00 Door damage $299.00 Filing fee reimbursement $27.00 Total award $3,466.00 Bond $2,140.00 Total payable by Tenant to Landlord $1,326.00

2. The tenants’ cross application is dismissed.

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Reasons:

1. Both parties attended the hearing. [NAME] represented the landlords.

2. The landlords have applied for compensation and refund of the bond following the end of the tenancy.

3. The tenants cross applied for payment of the bond and exemplary damages.

4. The tenants had a one-year fixed term tenancy of the premises commencing on 11 December 2023. Rent was agreed at $535.00 and a bond of $2,140.00 was paid. In July 2024 the tenants advised the landlord that they wanted to vacate before the end of the fixed term. They said that had fully vacated by 23 October 2024. Rent was paid up to 31 October 2024.

The landlords’ claims

Are the tenants liable for the costs to clean the premises?

5. I am satisfied that the tenants did not leave the premises, including the carpets reasonably clean at the end of the tenancy as required by section 40(1)(e)(ii)-(v) of the Residential Tenancies Act 1986 (the Act).

6. The tenants accepted that some extra cleaning was required but said that they had cleaned the carpets before vacating. I accept that the tenants cleaned the carpets using a ‘rug doctor’ machine but this did not remove the stains as shown in the photographs provided by the landlords and supported by the evidence of their witness, [NAME]. [NAME] completed the final inspection of the premises when the tenancy ended. It was therefore reasonable for the landlord to have the carpets professionally cleaned to attempt to remove the stains.

7. The amounts ordered are proved.

Are the tenants responsible for the damage to the premises?

8. To be successful in a claim for damage to the premises the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they, or others at the premises with their permission, did not carelessly or intentionally cause or permit the damage: sections 40(2)(a), 41 and 49B of the Act.

9. 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: section 49B(3)(a) of the Act.

10. The landlords claim that the following damage was caused during the tenancy:

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• Burns and stains on the carpets throughout the premises that could not be removed by cleaning

• Damage to walls, including unsuccessful attempts by the tenants to repair the damage

• Damage to a door, including unsuccessful attempts by the tenants to repair the damage

• Damage to curtain in a bedroom

11. The tenants dispute the damage saying that there were no stains or burns on the carpets, and there was no damage to the walls, although they accept that they did attempt to repair some walls. They claim that the damage to the curtain was simply wear and tear because the curtains “thinned” when they washed them. They claim the landlords’ photographs provided in support of the damage are “staged’. They provided their own photographs in support of their claim.

12. I am satisfied that the landlords have established that the damage occurred during the tenancy, is beyond fair wear and tear, and the tenants have not disproved liability for it. There is no evidence to support the tenants’ belief that the photographs provided by the landlords are staged. I accept that the tenants’ photographs do not show the damage claimed. However, the photographs are taken from a distance, and it is not clear whether they are taken in the areas where the damage is. On the other hand, the landlords’ photographs provide a ‘close up’ view of the damage. The report by the landlords’ insurer and [NAME]’s evidence also supported the landlords’ evidence as to the damage at the end of the tenancy.

13. The tenants also claim that, because the tenancy had not ended and they were still paying rent, they were entitled to be given the opportunity to go back to the premises to complete any necessary work themselves and the landlords failed to give them this opportunity. However, I am satisfied that the landlords did give the tenants that opportunity. On 1 November the tenants asked for 14 days to remedy the issues raised by the landlords. The landlords responded that same day stating that they accept the tenants will be fixing the issues identified and gave them the 14 days requested to complete the work. The tenants did not respond or go back to remedy the issues. They said that they did not do so because they were waiting for a formal 14-day notice which they said they would then have disputed.

14. It is clear from the evidence that, after 1 November, the tenants did not intend to go back to remedy the issues identified. They deny that there was any damage (other than attempts to repair some walls) and it was their evidence that they considered that the landlords had terminated the tenancy on 1 November (I deal further with this issue below) and therefore they did not consider that they should go back to rectify anything.

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15. I therefore find the tenants liable for the damage claimed.

16. The amounts claimed have been established. The cost to replace the carpets (which were less than two years old – the dwelling was built in December 2022) was $4,619.00 but the landlord is claiming the sum of $1,600.00 being four excesses they were required to pay towards the damage. The cost to repair the walls was $4,413.00 but again the claim is limited to the insurance excesses paid ($1,200.00, being three excesses of $400.00 each).

The tenants’ claims

17. The tenants’ claim exemplary damages for:

• Failure to lodge the bond within the time required

• Purporting to give an unlawful notice to end the tenancy

• Unlawful entry by the landlords

Should exemplary damages be payable for late lodgement of the bond?

18. There was no dispute that the bond was not lodged with the [COMPANY] within 23 working days of receiving it, as required by section 19(1)(b) of the Act. The bond was paid at or near the tenancy commencement and it was not lodged until 15 November 2024. Failure to lodge the bond in accordance with section 19(1)(b) is an unlawful act for which exemplary damages may be awarded.

19. The threshold requirement for the payment of exemplary damages is that the unlawful act was committed ‘intentionally’. In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court held that this requires the Tribunal to be satisfied that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account:

(a) The intention of the person

(b) The effect of the unlawful act;

(c) The interests of the party against whom the unlawful act was committed; and

(d) The public interest.

20. I do not consider that this is an appropriate case for an award of exemplary damages.

21. [NAME] is young (26 years old) and this is their first and only rental property. I accept her evidence that she was unaware until the tenants told her, and she

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then spoke to Tenancy Services that the bond was required to be lodged. She lodged it immediately upon becoming aware.

22. Thus, I am not satisfied that the landlords turned their minds to the unlawful act (not lodging the bond within the time limit) and then deliberately set about to commit the unlawful act. I consider that the late lodgement was due simply to a genuine oversight. I also do not consider that the purpose of exemplary damages, the deterrence factor, is met. The landlords are now on notice as to the requirements regarding bonds and I am satisfied that they will lodge bonds in the future.

23. The claim for exemplary damages for late lodgement of the bond is therefore dismissed.

Did the landlords’ enter the premises unlawfully?

24. Section 48 of the Act sets out the landlord’s right to enter the premises. That section provides that the landlord may enter the premises to complete inspections or do necessary repairs either with the consent of the tenants or after providing the appropriate notice of the intended entry. Entry by a landlord in contravention of section 48 is declared to be an unlawful act for which exemplary damages may be payable.

25. As mentioned, the tenants vacated the tenancy on 23 October. On 28 October they texted the landlords saying that the house was now empty and cleaned so “we are happy for you to have people through the house”. [NAME] responded asking for the door code to enable them to take prospective tenants through. She also said that she would be completing a final inspection. The tenants responded by provided the code.

26. The tenants claim that the landlords breached section 48 when they entered the premises on 30 October to complete the final inspection. They say that they only gave consent for entry to show the premises to prospective tenants, not for any other purpose.

27. I dismiss this claim. I consider that the tenants implicitly gave consent to entry by the landlords to complete the final inspection when they provided the door code when asked. The landlords’ text message requesting the code clearly states that they will be completing the inspection as well as showing the premises to prospective tenants.

Did the landlords give an unlawful notice to end the tenancy?

28. Section 60AA of the Act provides that it is an unlawful act for which exemplary damages may be payable if the landlord gives or purports to give a notice to terminate the tenancy knowing that they are not entitled to do so.

29. The tenants claim that the landlords gave an unlawful notice to terminate the tenancy in an email dated 1 November 2024. In that email [NAME] records

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the landlords concerns regarding the damage found at the inspection of the property on 30 October and their concerns that the tenants had stopped paying rent. The email then states:

“… we find it necessary to take possession of the property as of today to mitigate your and our potential losses.”

30. A tenant who leaves a fixed term tenancy before its expiry is liable to pay rent until the end of the fixed term or until a new tenant is found, whichever is the earlier: section 61(3)(b) of the Act. There is no obligation on a landlord to take steps to mitigate a tenant’s loss when he or she leaves a fixed term tenancy before its expiry: section 64(4) of the Act.

31. Thus, the landlords could have simply sat back and do nothing to find a new tenant and claim rent from the tenants until the fixed term ends. However, sensibly in my view, the landlords did take steps to find a new tenant as quickly as possible to assist the departing tenants and to minimise their loss and I consider that the intention of the statement in the 1 November email was simply to do this. That is, to take back possession to enable them to remediate the property so as to find another tenant as quickly as possible. This was to the tenants’ advantage because it would enable them to be released from the tenancy before its expiry and minimise the rent payable by them.

32. Moreover, even if it was a breach, the landlords have not claimed rent from the tenants after 1 November 2024. Therefore, there is no prejudice or loss suffered by them as a result. The tenants claim that they suffered stress as result of receiving the notice. However, they had moved out a week or so earlier and, as mentioned, ending the tenancy and the obligation to pay rent as soon as possible is to their advantage.

33. I therefore find that the landlords did not give a notice to terminate the tenancy knowing that they were not entitled to do so and the claim for exemplary damages is dismissed.

Tribunal application fee

34. The landlords have been wholly successful in their claims. They are therefore entitled to payment of the Tribunal application fee.

[NAME]

07 March 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 property 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 property.

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: