Tenant Awarded Compensation for Unclean Premises and Failure to Maintain Property

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[2025] NZTT 4928799, 5045050

TENANCY TRIBUNAL AT NORTH SHORE | TE TARAIPIUNARA RETIHANGA KI ŌKAHUKURA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

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

ORDER

1. The Bond Centre is to pay the bond of $2,880.00 (5821673-009) to [NAME] and [NAME] immediately.

2. [COMPANY] [NAME] must pay [NAME] and [NAME] $240.00 immediately, calculated as shown in table below.

Description Landlord Tenant Compensation: Unclean premises at start of tenancy $300.00 Lawns and Garden work at end of tenancy Cleaning of range hood at end of tenancy

$40.00 $20.00

Total award $60.00 $300.00 Net award $240.00 Bond to be released to Tenant $2,880.00 Total payable by Landlord to Tenant $240.00

Reasons:

1. Both parties attended the hearing. The first hearing was held remotely on 7 November 2024 and was adjourned part-heard. The second and final hearing was held face-to-face at North Shore District Court on 13 March 2025.

2. At the date of the application, the parties’ claims were:

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a. For the tenant: to reduce the fixed-term tenancy, compensation for costs incurred at the start of the tenancy and exemplary damages for failure to maintain the premises.

b. For the landlord: outgoings (water rates), compensation for damages, refund of the bond, and reimbursement of the filing fee.

3. Before the applications were heard, and as a result of attending mediation, the parties agreed to end the fixed-term tenancy on 16 August 2024. This was the sole matter recorded in the mediator’s order dated 14 August 2024.

4. Both parties confirmed the tenancy came to an end on 18 August 2024.

5. As at the date of the first hearing, the parties’ claims were:

a. For the tenant: refund of the bond, compensation for costs incurred at the start of the tenancy and exemplary damages for failure to maintain the premises.

b. For the landlord: outgoings (water rates), compensation for damages during the tenancy and additional costs incurred at the end of the tenancy, refund of the bond, and reimbursement of the filing fee.

Burden and standard of proof

6. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

7. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.

8. That includes a requirement that the party bringing a 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 fraction 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.

9. This obligation carried by an applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

10. 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.

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Relevant law in relation to exemplary damages

1. In the tenant’s claim, the Tribunal must consider claims for exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said:

Exemplary damages and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

2. Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.

3. Section 109 of the RTA relates to exemplary damages and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to:

a. The intent of the person committing the unlawful act.

b. The effect of the unlawful act.

c. The interests of the landlord or tenant against whom the unlawful act was committed.

d. The public interest; and

e. Whether it is just to make the award.

4. The maximum levels of exemplary damages are set out in Schedule 1A of the RTA.

THE TENANT’S CLAIMS

Compensation for unclean state of premises at start of tenancy

5. Under section 45 of the RTA, a landlord must provide the premises in a reasonable state of cleanliness. The tenant says that when he and his family arrived in New Zealand on 29 January 2024 they went straight to the premises.

6. On arrival, the tenant says they found the premises were not clean. They allege there was a dead rat in garage, the food bin was full and had maggots, the rubbish bin was full, and the carpet was unclean with visible pet hair.

7. The tenant says they had to pay for alternative accommodation at a nearby hotel from 29 – 31 January 2024, at a cost of $370.00 and pay for cleaning of the premises, at a cost of $200, before they could move in. The tenant seeks reimbursement of those costs as compensation for the landlord’s failure to provide the premises in a reasonable state of cleanliness.

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8. In support of the application, the tenant produced invoices for the costs of alternative accommodation and cleaning. The tenant also produced photographs of the premises taken on 29 January 2024 showing pet hair collected from the carpet and mould and mildew marks on the walls and windowsills. The tenant says there was dead rat carcass in the garage but he did not take a photo of it.

9. The landlord says he gave the key to the premises to the tenant’s New Zealand- based agent on 22 January 2024, being the day before the tenancy started. The landlord says the tenant’s agent accepted the premises as being in acceptable condition. The landlord’s agent accepted the previous tenants may not have done a “proper job of cleaning” but said the agent signed an inspection report saying the property was acceptable. The landlord’s agent filed a copy of the inspection report completed by the tenant’s agent dated 22 January 2024.

10. I am satisfied the tenant has proved the landlord did not provide the premises in a reasonable state of cleanliness. The photographs taken by the tenant on 29 January 2024 demonstrate the carpets had an unreasonable amount of pet hair on them and mould and mildew had not been removed from the lower walls. I also accept the tenant’s evidence that there was rubbish left in the house. While the tenant’s agent signed an inspection report to say the premises was acceptable on 22 January 2024, the photographs produced by the tenant on their arrival show it clearly was not.

11. The landlord is not required to provide the premises in an immaculate state, or the level of cleanliness a professional cleaner would bring it to, rather the standard is “reasonable state of cleanliness.” I therefore do not award the full amount sought by the tenant for cleaning costs and alternative accommodation.

12. I consider a total award of $300 is reasonable and make an order accordingly.

Exemplary damages for failure to maintain – moisture/mould/heatpump

13. Separate to the claim for compensation for cleaning and accommodation costs, the tenant claims the landlord also breached their obligations under section 45(1A) of the Residential Tenancies Act 1986 in relation to their failure to maintain the premises, and specifically, a failure to address issues raised by the tenant regarding moisture on the ceiling around light fixtures and mould on the ceilings in the bedrooms.

14. Under section 45(1)(b), a landlord must provide and maintain the premises in a reasonable state of repair. Breaching those obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the RTA.

15. The tenant says that in May 2024, the tenants noticed that after it rained, moisture accumulated around the light fixtures in the living room and in the

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corners of the ceilings in the main bedroom and second bedroom. The tenant says he raised this with the landlord, and in mid-May the landlord attended the property and visually inspected the areas. During the inspection the parties discussed the use of the heat-pump in the living area to assist with heating and ventilation. On 21 May 2024, an [NAME] attended to fix the heat-pump which the tenant says had been displaying a maintenance light since the start of the tenancy.

16. On 17 June 2024, the tenant emailed the landlord to raise the issue of mould in the corners of the bedrooms and asked for action to be taken about a potential “water damage issue.” The parties initially agreed the landlord’s contractor would inspect the issue and undertake some repairs to remove the mould, however in early July, the tenant said the plan changed and the landlord instructed the tenant to use a spray-on mould remover.

17. The tenant says the landlord never properly inspected the issue, and the mould continued to appear on the ceilings, despite the tenants using heater panels in the two bedrooms. The tenant says it impacted their use of the two bedrooms. He says they had to buy panel heaters to warm the two bedrooms and that they had to open the windows in the bedrooms during winter. The tenant says he could touch the moisture around the lights in the living room and it concerned him throughout the tenancy.

18. The tenant filed photographs taken on 29 May 2024 which showed areas of mould around the light fixtures and in the corners of the two bedroom. The tenant also filed a photo of the exterior of the premises outside of the smallest bedroom, said to show “severe damage to the external part of the small room’s roof.”

19. The only Healthy Homes Standards report produced was one dated 9 December 2020 which records the property passed the inspection.

20. The landlord confirmed the tenant raised the issue of mould in early May but says it was caused by the tenant failing to use the heat-pump and failing to properly ventilate the house. The landlord says that on 20 May 2024, the tenant told the landlord they were not using the heat-pump because it was too expensive. The landlord arranged for a contractor to check the heat-pump, and on 21 May the contractor attended and the landlord says the contractor confirmed the heat-pump was in working order.

21. The landlord filed photographs taken 20 June 2024 which showed clothes racks in the lounge area with clothes drying on them. The landlord says any mould was a result of the tenant failing to use the heat-pump, failing to ventilate the area and drying wet clothes inside.

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22. The landlord says the tenant raised the issue of the moisture around the light fixtures in his email of 17 June 2024, and that the landlord observed those areas during their inspection on 20 June 2024.

23. The landlord has counter-claimed for the cost of removing mould at the end of the tenancy ($253) and the cost of inspecting the roof to check for any potential leaks on 18 August 2024 ($138). I will address those counter-claims separately below but note the evidence above is relevant to the landlord’s counterclaims also.

24. I am not satisfied the tenant has proved the landlord committed an unlawful act. The tenant must establish their claim “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. In this case, it is the tenant’s word against the landlord’s. The tenant believes the moisture around light fixtures and mould on the ceiling was caused by a leak in the roof or ceiling or some other issue which the landlord failed to investigate, however, the tenant has not produced any evidence to demonstrate that. To the contrary, the only evidence as regards any leak is the landlord’s evidence that the roof was investigated on 18 August 2024 and no watertightness issues were identified.

25. The tenant submits photographs taken on 29 May 2024 show the “severe damage to the external part of the small room’s roof,” however I am not satisfied the photos show any such damage. The photo of the exterior brick wall, window and exterior cladding does not show the roof condition. While there appears to be some wear to the upper exterior weatherboards, they do not show any damage which demonstrates how water could be entering the ceiling cavity.

26. Given the tenant has not proved that the landlord committed an unlawful act, I dismiss the tenant’s claim for exemplary damages for failure to maintain the premises.

THE LANDLORD’S COUNTERCLAIMS

Did the tenant owe the landlord compensation for water rates?

27. The tenancy ended on 18 August 2024.1

28. The landlord says the tenant owes $16.42 for unpaid water rates.

29. In support of the claim, the landlord filed a Watercare invoice dated 26 July 2024 which records the following:

a. Consumption for the period 26 June 2024 to 26 July 2024 was:

1 Although the Mediator’s Order recorded the tenancy would end on 16 August 2024, at the first hearing on 7 November 2024, both parties confirmed the tenancy ended on 18 August 2024.

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i. For water, $27.97; and

ii. For wastewater, $38.20.

b. The (actual) water meter reading as at 26 June 2024 was 1412.

c. The (estimate) water meter reading for 26 July 2024 was 1426.

30. The landlord also filed a photograph of the water meter taken on 18 August 2024 which shows a reading of 1429.

31. At the hearing, the landlord was unable to explain how the figure of $16.42 was reached. No evidence of payments made by the tenant towards any water rates bills throughout the tenancy were produced.

32. The tenant accepts that, if they owe the landlord for water rates, they will make payment.

33. The landlord has not established their claim on the balance of probabilities. There is not sufficient evidence to prove the tenants owe $16.42 for unpaid water rates.

34. I dismiss the landlord’s claim for outgoings.

Is the tenant liable for the costs of cleaning and repairs?

35. 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.

36. When seeking compensation for damage, 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.

37. The landlord says the tenant did not leave the premises reasonably clean and tidy. The landlord says the tenant should compensate the landlord for the following:

a. Cleaning the ceiling mould: $253

b. Roof inspection for leaks: $138

c. Exit clean (including mowing the lawn and painting): $322

38. The landlord filed an invoice for $253 for the cost of cleaning the ceilings dated 29 August 2024. The evidence in relation to the cause of the mould is the same evidence as relates to the tenant’s claim for exemplary damages for failure to maintain.

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39. The landlord filed an inspection report dated 22 January 2024 to show the condition of the property at the start of the tenancy. The photographs attached to that report do not show the condition of the ceiling in the bedrooms or living room.

40. As stated above, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. As the landlord has not produced evidence of the state of the ceilings prior to this tenancy, I can not be satisfied the damage alleged (and in particular, the mould on the ceilings shown in later photographs) occurred during this tenancy.

41. I dismiss the landlord’s claim for compensation for cleaning mould.

42. The landlord filed an invoice for $138 for an inspection of the roof conducted on 18 August 2024. The inspector noted there were no issues with the roof. The landlord says they only had the roof inspected because the tenant’s complained about moisture during the tenancy. Having found no issue with the roof, the landlord says the tenant should be liable for the cost.

43. Matters such as inspecting a roof for leaks are matters of general maintenance for which the landlord is responsible. The landlord was unable to identify any contractual or statutory basis for their claim that the tenant should be liable for the cost.

44. I dismiss the landlord’s claim for compensation for the roof inspection.

45. The landlord filed an invoice for $322 for exit cleaning, including the following:

a. Lawn-mowing: $40

b. Garage cleaning: $20

c. Range hood cleaning: $20

d. Door and roof repair, spray and paint: $200.

46. The tenant accepts they did not leave the gardens in a reasonably tidy state, and accept $40 is reasonable compensation. Therefore, by consent, I award the landlord $40 in compensation for garden work.

47. As for garage walls, the landlord filed photographs taken 17 August 2024 which showed some black marks on the block walls in the garage. The landlord did not file photographs to show the condition of the garage walls at the start of the tenancy. Without evidence as to the state of the garage wall at the start of the tenancy, the landlord has not proved any damage occurred during the tenancy.

48. I dismiss the landlord’s claim for repairs/cleaning of the garage walls.

49. As for the range hood cleaning, the landlord filed photographs showing the range hood filters were not clean. The tenant says the range hoods were reasonably clean, and any grease is just from regular use. I am satisfied the

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photographs taken on 17 August 2024 show the range hood filters were not reasonably clean at the end of the tenancy.

50. I award the landlord the amount sought, being $20.00, for the cost of cleaning the range hood.

51. As for the front door, the landlord produced photographs taken 17 August 2024 which show marks on the front door which the landlord says was caused by the tenant sticking “things” on the door. The tenant confirmed his daughter used “scotch tape” to hang a sign on the front door and that caused some flakes of paint to come off, however, the tenant says the door was very old and had visible marks and nail holes at the start of the tenant. The tenant produced photos of the door taken on 29 January 2023, when the tenants moved in. In essence, the tenant says the damage caused by his daughter did not significantly devalue the already old and damaged door.

52. I find the photograph of the door taken on 29 January 2023 shows that the door already had damage and marks on it at the start of the tenancy. The repairs completed by the landlord at the ends of this tenancy would have remedied damage that pre-existed this tenancy.

53. I dismiss the landlord’s claim for repairs to the front door.

Is the tenant responsible for the costs of ending the fixed-term tenancy early?

54. As recorded in the tenancy agreement, on 14 January 2024, the parties entered into a fixed-term tenancy commencing 23 January 2024 and ending 20 January 2025.

55. Following the issues raised by the tenant, the tenant requested an early end to the fixed-term tenancy, which was initially not agreed to by the landlord. \

56. However, following the parties attending a mediation on 14 August 2024, the parties agreed to the fixed term tenancy ending on 16 August 2024.

57. The mediator’s order records the parties agreed to only one order, that: 1) The parties mutually agree that the tenancy will end on Friday 16 August 2024.

58. The mediator’s order records, “Other matters to be discussed at Tribunal.” The mediator’s order does not record any further orders or conditions agreed to by the parties.

59. At the hearing, the parties confirmed the tenancy came to an end on 18 August 2024.

60. At the hearing, the landlord sought the following compensation for costs incurred in ending the fixed-term tenancy early:

a. Rent until a new tenant moved in, being $1,028.57 for the period 19 – 26 August 2024;

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b. Administrative costs such as advertising, conducting viewings and arranging new tenancy, being $870.00.

61. The landlord was unable to produce any evidence that the tenant agreed to pay these costs as a condition to ending the tenancy early. The landlord confirmed the tenant did not agree to pay those costs but submitted that the landlord did not agree the tenant would not be liable for those costs and therefore the landlord was entitled to compensation.

62. The tenant says the only conditions agreed to were those recorded in an email from the landlord dated 17 July 2024, in which the parties agreed the tenant would:

a. Allow the landlord to perform mould remediation work;

b. Permit a ceiling inspection;

c. Allow house viewings for potential new tenants.

63. The tenant says the amounts now sought for the costs of finding a new tenant, and for the rent up until that tenant moved in, were not agreed to.

64. The landlord has failed to establish the tenant agreed to the costs sought as a condition to the fixed-term tenancy ending.

65. I dismiss the landlord’s claim for compensation for the costs of ending the fixed- term tenancy early.

N Small

19 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: