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An American academic couple on sabbatical fought Auckland landlords over a deposit for a short-stay tenancy, winning $1000-plus back for a place originally advertised as an Airbnb.
At Manukau District Court, the Tenancy Tribunal ruled on the case brought by Americans Naoko and Russell Neilson, who dialled in to thehearing from overseas.
They were professors who work at a Philadelphia university but were keen to take on an Auckland short-stay rental because they were on a sabbatical here, the decision said.
Landlords Elaine and Grant McGough originally advertised their Jade Ave, Pakuranga Heights place via Airbnb.
The professors liked it so the parties discussed an arrangement: they decided it would be better if Airbnb was avoided or side-stepped, cutting the rent back by $690/week.
“The Neilsons and McGoughs agreed to avoid an Airbnb rental, which would have meant paying a percentage to Airbnb, and a rate of about $1890.00 per week,” the tribunal said.
The two parties agreed instead on a much lower $1200/week for a minimum 10-week term.
The Neilsons are United States citizens, the tribunal noted, with three school-age children.
Their university granted them six-month sabbaticals for late 2022 to early 2023.
The street in Pakuranga Heights where the Americans rented the short-stay home from the landlords, everyone avoiding Airbnb. Photo / Google Streetview
The sabbaticals’ terms relieved the couple of face-to-face teaching duties and permitted them to travel, but required them to continue research and other scholarly duties full time.
Since the Neilsons had family in Auckland, they decided to use some of their sabbatical to live and work near to them. They and their three children rented the Pakuranga Heights house, close to family, from November last year to January this year.
The McGoughs are experienced property owners/property managers, the tribunal noted.
They flexibly rent their properties out for various purposes, including long-term residential use and short-term holiday stays. They regularly take bookings through Airbnb but also rent out their premises through other platforms, the tribunal decision said.
Once the two parties had agreed on the Pakuranga Heights rental, the McGoughs sent the Neilsons an agreement where they were the “host” and Americans were described as “guest”.
The landlords held a payment as security and that was called a deposit. The arrangement was variously described as an occupancy and a tenancy.
All went fine - until the parties disagreed about the home’s cleanliness once the tenancy ended.
The landlords refused to return the Neilsons’ full deposit over the cleanliness problem. The Americans paid $2400 but only got $1066.19 back at the end of their stay.
The Americans said the place wasn’t reasonably clean at the start, but the landlords said it was. The tenants said they left the place cleaner than they found it but they couldn’t get their money back.
The Americans took the matter to the tribunal, which heard it on June 21 and released its decision last month.
But the McGoughs argued it wasn’t a traditional arrangement but a short-stay tenancy.
They weren’t actually landlords and the Americans weren’t actually tenants under the law. Instead, they were hosts and guests, the Auckland homeowners said.
But the tribunal disagreed and said it could and would decide.
“There was a tenancy because the Neilsons were granted a right to occupy the premises in consideration of payment, and the premises are residential premises,” ruled adjudicator Robert Kee.
The McGoughs did not establish that the tribunal had no jurisdiction to hear the matter.
Then the ruling turned to disagreement about why the Americans were here and what the landlords thought both parties were doing.
The McGoughs claimed the Neilsons rented for holiday purposes, not residential tenancy.
But the Neilsons said their sabbatical wasn’t a holiday. They did take some time off during sabbatical, but they were living and working from the premises, not holidaying there, they told the tribunal.
Then there was the cleanliness issue and the McGoughs retaining just over $1000.
“The McGoughs kept that sum on the grounds that the Neilsons did not return the premises reasonably clean and damaged a refrigerator drawer during the tenancy. The Neilsons dispute those allegations.”
The adjudicator said there was no magic formula for determining what was reasonably clean and tidy.
Evidence available included the parties’ oral evidence, their correspondence, and the inspection report and photographs.
On the balance of probabilities, the adjudicator found the tenants did leave the premises reasonably clean and tidy. It was more likely than not that the tenants left the premises cleaner and tidier than when they arrived.
The landlords were ordered to repay the Americans $1086: return of a deposit or bond and the filing fee of $20.44.
Asked to comment on the ruling, Airbnb’s country manager for Australia and New Zealand Susan Wheeldon said business was built on trust.
“Our platform is designed to help keep our community safe, both online and offline, throughout the entire process. Provided guests stay, pay and communicate only on Airbnb, they will be protected by our secure processes, refund and support policies, and other safeguards.”
In general, the business acted against hosts who breached its platform, she said.
Anne Gibson has been the Herald’s property editor for 23 years, has won many awards, written books and covered property extensively here and overseas.
