Tenant Wins Compensation for Unclean Premises and Bond Issues

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[2025] NZTT 4945073, 5000591

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Tenant

CROSS-APPLICANT: [redacted]

Landlord

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

2. [COMPANY] must pay [The tenant/s] $397.00 immediately, calculated as shown in the table below:

Description Landlord Tenant Rent arrears $3,420.00 Bond held by landlord $1,740.00 Compensation: costs of start of tenancy cleaning $1,125.00 Compensation: premises not reasonably clean $425.00 Compensation: unlawful entry, breach of privacy $500.00 Filing fee reimbursement $27.00 Total award $3,420.00 $3,817.00 Net award $397.00 Total payable by Landlord to Tenant $397.00

3. The landlord has committed an unlawful act by failing to lodge the bond with the [COMPANY].

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Reasons:

1. Both tenants and [NAME] for the landlord attended the video hearing.

2. Both parties have made applications to the Tribunal.

3. The tenants claim:-

a. Reimbursement of costs they paid to have the premises cleaned when they moved in ($1,725.00) as they say the tenancy premises were not reasonably clean at the start of the tenancy;

b. Compensation for breach of privacy or unlawful entry alleging a representative for the landlord entered the premises and took photographs without their consent;

c. Compensation for maintenance or Healthy Homes Standards issues that the hot water cylinder failed, there was exposed wiring, holes in walls and ceiling, draft and damp and mould on curtains.

4. The landlord claims payment of rent owing.

Were the premises reasonably clean at the start of the tenancy?

5. A landlord has a legal obligation to provide tenancy premises in a reasonable state of cleanliness at the start of the tenancy; section 45 of the Residential Tenancies Act 1986 (RTA).

6. I agree with the tenants that the house was not reasonably clean when they arrived, with their belongings in the moving truck, to move in. The landlord also accepts this.

7. Photographs show dirty toilets, oil drops on the rangehood filters, cobwebs inside the windows, built-up dirt along the window and door frames, broken glass on the kitchen floor and “splatter” up the wall, visibly mouldy curtains, dirty rags and cleaning gloves in the kitchen. The tenants say the carpet was dirty although there were no photos of this.

8. The tenants texted the landlord saying the house was not clean. She agreed to pay for cleaning “by the company you choose at my cost”.

9. The tenants unloaded their belongings into one room and the family of four slept in one bed for the first night. A cleaning company they had found to come at short notice cleaned the house the next day. The cost was $1,725.00.

10. The landlord says this is too expensive and that even deep cleaning should be much less than this. She says she trusted the tenants to find a reasonably priced service and it is not fair that she be expected to pay this much.

11. My decision is that the landlord must reimburse the tenants the price they paid for the cleaning because:-

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a. She did not specify a price limit in her offer to pay for cleaning;

b. The house was very dirty;

c. The tenants had to find cleaners urgently as the condition of the house prevented them unpacking.

12. It was a breach of the tenancy contract to not provide the house reasonably clean. The tenants had every reason to be disappointed and upset. They were significantly inconvenienced. My decision is that it is fair and reasonable that the landlord pay the cost the tenants have incurred.

13. The landlord questions whether the cleaning was actually done or the money actually paid. The landlord has no evidence to support her query. I accept the tenants’ verification of payment to [COMPANY].

14. The landlord has allowed $600.00 for cleaning on her rent ledger. I have made an order that the landlord must pay the additional $1,125.00 to the tenants.

15. I also order the landlord to pay the tenants an additional $425.00 in general damages for the stress caused by not only the dirty house which delayed their moving in process but also for refusing to pay the cleaning invoice when she had promised to do so. This then caused the tenants embarrassment as [COMPANY] pursued payment and financial stress as they came up with the money to pay it themselves.

Was there a breach of privacy or unlawful entry on behalf of the landlord?

16. The tenants say the landlord has entered the premises without consent or notice and taken photographs without their consent. They supplied a text message from the landlord sent on 30 March 2024 which said:

Earlier this month, my friend took some photos and videos obviously showing there was no deep cleaning at all by your appointed company. Can share them to you if you want to have a look.

17. A landlord may not enter tenancy premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.

18. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.

19. In addition, a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. Section 38(2) RTA.

20. The landlord explained in the hearing that she was overseas at the time the tenancy started and that she had asked a friend ([NAME]) to oversee things on her behalf.

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21. [NAME] gave oral evidence during the hearing. She said that she took photos and video after being given permission to enter the house by the [NAME]. [NAME] said she was helping her partner and a handyman to investigate a fault with the hot-water cylinder.

22. [The applicant/s] says he does not recall agreeing to [NAME] coming inside the house but agrees the tenants consented to a handyman coming while they were out.

23. If a tenant gives consent to entry, or a landlord gives notice to enter premises for an inspection or repairs, the entry must be only for the purpose that has been specified. So, if [NAME] was authorised to be in the house, she could not use that opportunity to take photographs and videos for another purpose.

24. I find it to be more probable than not that there was a breach of the tenants’ privacy and unlawful entry by [NAME] on the occasion when she took photos and video for the purpose of checking the cleaning.

25. The landlord is responsible for this as [NAME] was acting on her behalf.

26. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

27. The breach was intentional. The intent was to check whether the cleaning had been done because the cost of this had caused a dispute between the landlord and tenants. It was not lawful to do this without the tenants’ consent. A better thing to do would have been to contact [COMPANY] directly and ask them to verify the work they had done. The tenants suggested to the landlord that she was welcome to do this, and she had the invoice, so the contact details were available to her. The effect of the breach was to cause the tenants to feel a sense of betrayal and breach of trust. A tenant’s interests are that their belongings and home are private, and a landlord (or agent) will only access these with notice or consent. There is a public interest in this issue because this is a fundamental and important right. A landlord has given up the right of free access to tenancy premises by entering into a tenancy agreement in exchange for rent.

28. It is just to award exemplary damages and I award one-third of the maximum which is $500.00 to reflect that there was a single breach.

29. I also note that if a landlord is overseas for more than 21 days, they must appoint an agent and notify the tenant of the agent’s name, contact address, and address for service; s16A RTA.

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Was there a breach of maintenance obligations or Healthy Homes Standards?

30. Under section 45 RTA, a landlord must provide and maintain premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation, and comply with the Healthy Homes Standards (contained in the Residential Tenancies (Healthy Homes Standards) Regulations 2019).

31. Breaching any of these 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 Residential Tenancies Act 1986.

32. My decisions from the evidence are:-

a. There was a short-term problem with the hot water cylinder which was fixed promptly;

b. The house is certified as compliant with all Healthy Homes Standards as at 24 January 2024. I note that the tenancy agreement does not include a signed and completed Healthy Homes Statement as is required by s13A RTA. This is a breach and a landlord can be fined up to $750.00; s13A(1F) RTA.

c. It is not clear whether the Healthy Homes report supplied in evidence was provided to the tenants at the start of the tenancy.

d. No other maintenance issues are proven.

33. This claim is dismissed.

How much rent is owing

34. The tenants accept that there is rent owing. They explained that because the landlord refused to pay the cleaning invoice, they calculated how much they thought the landlord owed them, took the bond into account, and stopped paying rent accordingly.

35. The rent ledger shows rent owing to the end date of the tenancy of $3,440.00.

36. The landlord owes the tenant $20.00 as a rent reduction for the first week of the tenancy (she offered to reduce the rent to $850.00 per week). The rent owing is therefore $3,420.00.

37. The bond is $1,740.00.

38. The landlord says the tenants left rubbish behind and caused damage so they should not receive the bond. The tenants say the rubbish was there when they moved in. The landlord has no ingoing photographs, and I am inclined to believe the tenants especially considering the house was not clean when they moved in.

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39. Of more concern, it was discovered at the end of the hearing that the landlord has not lodged the bond with the [COMPANY]. This is another breach of the RTA and an unlawful act for which a fine of up to $1,500.00 can be awarded; s19(2) and Schedule 1A RTA.

40. There is no excuse for not lodging a bond. I do not award exemplary damages only because the tenants did not apply for this.

41. I have made a declaration that the landlord has committed an unlawful act.

Filing fee and suppression of names

42. Both parties have been substantially successful in their claims. The landlord has breached the RTA, so I order she pay the tenants the filing fee and decline to suppress the landlord’s name from the published order.

[NAME] 26 February 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.

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].

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/

Reasons: