What was Tenancy Tribunal case 4345510 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4345510?

Compensation: loss of amenity – heat…: $5,825.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Refund "Maintenance" Payments: $5,000.00 awarded to tenant; Refund Water Fixed Costs: $1,004.04 awarded to tenant

What type of tenancy dispute was case 4345510?

The dispute type was not classified.

Where can I read the official tribunal order for case 4345510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9601907-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4345510 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4345510?

Compensation: loss of amenity – heat…: $5,825.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Refund "Maintenance" Payments: $5,000.00 awarded to tenant; Refund Water Fixed Costs: $1,004.04 awarded to tenant

What type of tenancy dispute was case 4345510?

The dispute type was not classified.

Where can I read the official tribunal order for case 4345510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9601907-Tribunal_Order_Redacted.pdf.

24 Langana Avenue, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4345510 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4345510 — net $11,849.48 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund water fixed costs	$1,004.04	Refund water fixed costs
Refund "maintenance" payments	$5,000.00	Refund "maintenance" payments
Compensation: loss of amenity – heating/insulation	$5,825.00	loss of amenity – heating/insulation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$11,849.48
Total payable by Landlord to Tenant	$11,849.48

Claims and awards in Tenancy Tribunal application 4345510 — net $11,849.48 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund water fixed costs	$1,004.04	Refund water fixed costs
Refund "maintenance" payments	$5,000.00	Refund "maintenance" payments
Compensation: loss of amenity – heating/insulation	$5,825.00	loss of amenity – heating/insulation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$11,849.48
Total payable by Landlord to Tenant	$11,849.48

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Najah Al-Juboori must pay [The tenant/s] $11,849.48 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing. Both parties were also represented by Counsel. [The tenant’s representative] appeared for the tenant and Mr Wiidjaya appeared for the landlord. Background
This was a reasonably lengthy tenancy, which commenced on 22 March 2018 and ended in September or October 2022 (the precise date is the subject of a separate application). Either way, the tenancy lasted for more than four years. DescriptionLandlordTenant Refund water fixed costs $1,004.04 Refund "maintenance" payments $5,000.00 Compensation: loss of amenity – heating/insulation $5,825.00 Filing fee reimbursement $20.44 Total payable by Landlord to Tenant $11,849.48
During the hearing, [The tenant’s representative] described an apparent agreement between the parties as having the character of “a cup of tea and a handshake”. It seems to the Tribunal that the entire tenancy was characterised by that lack of informality.
Apart from two signed Tenancy Agreements (the latter of which was only a signature page), not much else appears to have been recorded in writing during the tenancy.
Both parties referred to a “friendship” or “good relationship” which appears to have been the basis of most of their engagement. And therein lies the danger.
While friendly relations between tenants and landlords are desirable and it is certainly permissible to rent premises from friends, this should not obscure the reality that such a relationship is a commercial one. A tenant is paying a significant sum of money for the right to exclusive possession of a property. A landlord renting a property is running a business. As such, they must be fully aware of the legal framework in which their business operates and must comply with their legal obligations.
The original tenancy was for a fixed term commencing 22 March 2018 and ending on 22 March 2020. The agreed rent under the agreement was $1000.00 per week.
It appears that sometime in January 2020 discussions were held between the parties about a further fixed term. Another tenancy agreement was signed by the parties on 27 January 2020, however the written and signed agreement consisted only of a new signature page and the standard “Outlines of the Provisions of the Residential Tenancies Act 1986 (RTA)”.
Impliedly, the parties agreed to a new tenancy on the same terms as the previous tenancy. Counsel for the tenant suggested that specific terms that had previously been included in handwriting in the 2018 agreement may no longer have been in place. However, those particular terms were not strictly necessary to have been added as they are covered by the provisions of the RTA.
The renewed tenancy was for a fixed term commencing 22 March 2020 and ending 22 March 2022. There was no evidence as to discussions regarding any further renewal or extension and it seems that the tenancy must have become periodic after 22 March 2022.
On 5 August 2022 the landlord’s solicitors sent a 90-day termination notice to the tenant. It is unclear on what basis the tenancy was to be terminated. The end of the notice period was 3 November 2022.
The tenant then gave notice of his intention to vacate the property on 5 September 2022.
The tenant moved out on 14 September 2022. Approach in the Tribunal
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. The Claims
The tenant has made a number of claims against the landlord. In summary, these claims are: a. That the rent paid for the duration of the tenancy exceeded the market rent by a substantial amount, and that the excess rent should be refunded to him; b. That additional payments made by him for “maintenance” in 2020 and 2021, totalling $5000.00, were unlawful and invalid and should be refunded to him; c. That water payments made by him included the fixed charges which are the responsibility of the landlord and should be refunded to him; and d. That there was no insulation or heating provided by the landlord, which is a breach of the landlord’s obligations under section 45 of the RTA. He seeks compensation for this breach.
The landlord has apparently filed a cross-application seeking payment of rent arrears and compensation for vacated cleaning and damages.
Unfortunately, that cross-application was filed only days prior to the hearing on 6 December 2022. As such, it had not yet been processed by Tenancy Services and so I was unable to consider those claims. Market Rent
The tenant says that the rent paid during the tenancy exceeded the market rent.
In support of that claim, the tenant primarily relies on a Rental Appraisal report he has obtained from [Property Management Company]. That report states that, based on market conditions in January 2022, the likely rent for this property would be between $850 and $895 per week.
Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
In the case of a fixed term tenancy, any application must be filed no later than 3 months after the start of the tenancy or the last rent review (see s 25(2) RTA).
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
The test for market rent is the amount “a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay for the tenancy”.
The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
The landlord says that the tenant is barred from making this claim due to the clear limitation period imposed by section 25(2).
I agree.
The tenant entered into the agreement in March 2018, and there was a further renewal (at the same rate) in January 2020. It was not until 2022, some four years later, that this claim has been raised.
I therefore find that I do not have jurisdiction to hear this claim, and it is accordingly dismissed.
Even if I am wrong about that, a single rental appraisal is, in my view, insufficient evidence to establish that the rent exceeded the market value by a substantial amount, and I would have also dismissed the claim on that basis. Payments for Maintenance
It was not disputed that during 2020 and 2021 additional payments were made by the tenant that totalled $5,000.00.
The tenant says that the landlord came around to visit shortly after the renewal was signed and said he wanted to talk.
He told the tenant that he needed more money to cover additional costs and wanted to increase the rent. The tenant said that he did not agree to any rental increase, and it was not in writing, and so at that point the landlord asked for $1000 every three months to cover maintenance costs.
Subsequently, the tenant made numerous payments (not always $1000) which totalled $5000.00 He said that he realised in early 2021 that it was not proper for the landlord to be asking for these payments and so he stopped paying at this time.
On this issue the tenant called a witness, [The tenant’s witness], who had been present at several visits when these payments were discussed. He had also resided at the property.
His evidence was that the landlord came over and initially said that he had some tax payments due and wanted assistance to pay this. He asked the tenant to pay half the tax bill that was due. He said he recalled there was also a discussion about increasing the rent but that the tenant did not agree to a rent increase.
[The tenant’s witness] said that there were also several meetings and discussions about maintenance payments. He said that they did not want to or see a need to pay for maintenance however they were anxious to stay in the property and so they felt they had no choice but to agree because the landlord indicated if they did not agree then they could not stay.
Under cross-examination the witness said that he was not sure but thought that the conversation about maintenance payments was in April 2020. At any rate it was after the tenancy agreement had been renewed in January 2020.
When it was put to him that the payments were effectively a rent increase [The tenant’s witness] denied this and reiterated that it was for costs associated with the property including the taxes.
The landlord accepted that the payments were made but said that these were not maintenance payments but rather reflected a verbal agreement for a rental increase. The landlord said that this agreement was not recorded in writing but was verbally agreed at the time the renewal was signed in January 2020.
The landlord pointed out that [The tenant’s witness] must be wrong if he said the conversation occurred in April 2020 because the first payment was in fact made in March 2020.
The landlord said that the reason the payments were ad hoc sums rather than weekly payments was because the tenant said he would not be able to pay an increased weekly rental. The landlord said that he suggested the three-monthly payments to assist the tenant. He also pointed out that the tenant was not able to always pay $1000 and would make part-payments instead. The landlord said he was fine with that and never made an issue of it.
The tenant denied this absolutely. He said that if it had been a genuine rent increase, weekly payments would have been far easier to manage than ad hoc additional payments. He pointed out that the bank transaction references were “maintenance” because that was his understanding of what the payments were for.
Section 24(1) of the RTA provides as follows. 24 Rent Increases (1) The rent payable in respect of any tenancy may be increased by the landlord provided all of the following conditions are complied with: (a) the landlord shall give the tenant notice in writing of the increase; and (b) that notice shall specify the amount of the increased rent and the day upon which the increased rent shall become payable; and (c) the day upon which the increased rent shall become payable shall be not less than 60 days (or, in the case of a boarding house tenancy, not less than 28 days) after the date on which that notice is given; and (d) the rent must not be increased within 12 months after the date of the commencement of the tenancy; and (e) the rent must not be increased within 12 months after the date on which the last increase took effect; and (f) [Repealed] (g) a landlord under a fixed-term tenancy— (i) may not increase the rent during the term of the tenancy unless permitted by the provisions of the tenancy agreement to do so; and (ii) may do so only in accordance with this section and any such provisions of the tenancy agreement; and (h) where the Tribunal has made an order under section 25 and that order is still in force, the rent shall not be increased to an amount in excess of the amount specified in the order.
The landlord in this case said that while section 24 appears to be prescriptive, there is case law and commentary that supports the proposition that if the tenant agrees to the rent increase, informal notice may suffice. In support of that proposition, he relies on Anquetil v North Canterbury Nassella Tussock Board. 1
I accept that Anquetil remains good law 2 however it is of doubtful relevance to the issue at hand. In that case (and the subsequent cases referred to) there was very clearly a purported increase in rent; the issue was that it did not conform strictly to the requirements of section 24.
That is not the case here. Here, we have two completely differing versions of whether there has been a rent increase at all, verbal or otherwise.
Having considered all the evidence, I am satisfied on balance that the payments made by the tenant were not reflective of a rent increase, for the following reasons.
The tenant had paid rent on a regular weekly cycle for the duration of the tenancy; there is no reason why any rent increase (if in fact one had been agreed) would not have continued in this vein.
The bank statements very clearly record “maintenance” as the transaction reference; this is not consistent with the landlord’s claim that the payments were for rent.
While Anquetil and other cases do confirm that verbal agreements may suffice; a landlord must have sufficient evidence to show that there has in fact been such a verbal agreement. I am not satisfied that the landlord has done so in this case.
I find that the payments were for maintenance or other costs and were not a rent increase.
Under section 45 of the RTA, maintenance is clearly a landlord obligation. Even if the tenant agreed to pay maintenance, section 11 of the RTA provides that a tenant may not waive their rights under the Act.
The payments should not have been requested by the landlord and I therefore order the landlord to refund the tenant $5,000.00. Water Payments
The tenant says that throughout the tenancy he paid the entirety of the water bills. 1 HC Christchurch, AP93/89, 30 October 1989, Holland J 2 As confirmed in Morrison v Kerr, 2 April 2013, Tauranga DC and Susan Klein Family Trust v Cheverall [2016] NZDC
Section 39(3) of the RTA provides that a tenant is only responsible for outgoings that are exclusively attributable to their occupation of the premises or use of the facilities.
That means that, in relation to water costs, a landlord is responsible for any fixed charges which are incurred whether or not the premises are occupied.
In this case, the parties agreed that the tenant should not have been paying the fixed water charges. After the hearing, the parties agreed that the total paid for fixed water charges was $1000.04.
I therefore order that the landlord refund this amount to the tenant. Insulation and Heating
Under section 45(1)(c) of the RTA, a landlord must comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises.
The tenant says that no heating was provided for the duration of the tenancy and that the landlord did not comply with the insulation regulations. It was also pointed out (although does not form part of the claim) that no insulation statement was included at the time of the tenancy renewal in January 2020.
From 1 July 2019, all residential premises must be insulated to a minimum standard, in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Regulation 6 of the Housing Improvement Regulations 1947 provide that “every living room shall be fitted with a fireplace and chimney or other approved form of heating”.
The landlord does not dispute that an insulation statement was not provided; he says that this is because he was not aware that it was a requirement.
However, he says that nevertheless the premises were insulated in accordance with the regulations and that he had been advised there was an exemption for underfloor heating because there was a concrete pad. He said there was insulation in the ceiling but accepts it was not up to the current regulations.
The landlord said that the reason a heater was not provided was simply because it was not needed because this was a warm property.
After the hearing, the landlord (through his Counsel) corrected this and said that there was no exemption to underfloor insulation; rather that the insulation in the basement was compliant.
A report prepared by Healthy Homes Inspections NZ Ltd, dated 28 October 2022 was provided.
That report confirms that the premises were not compliant with the insulation regulations, in particular the ceiling insulation had an R value less than 2.9.
For completeness, I note that this property was not required to be compliant with the full suite of Healthy Homes Standards during this tenancy. That is because the compliance date applied only to “new or renewed tenancies after 1 July 2021”. This tenancy commenced in 2018 and was renewed in 2020.
However, the landlord was still required to comply with other relevant enactments; in this case the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and the Housing Improvement Regulations 1947.
I find that the landlord has breached their obligations by failing to comply with these enactments.
In this case the primary loss I must focus on in deciding the amount to compensate the tenants in this case is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenant was essentially paying for something he did not receive.
In this case, there has clearly been a loss of amenity for the duration of the tenancy. The tenant paid rent and in return expected a warm and properly insulated home. For the reasons and to the extent outlined in the paragraphs above, he did not receive that.
This tenancy was a lengthy one, lasting around 233 weeks. Therefore, the loss of amenity was also significant. I consider that compensation in the amount of $25 per week for the lack of heating and insulation is a reasonable figure.
I therefore order the landlord to pay the tenant $5,825.00 in compensation. Suppression, Filing Fee, Costs
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, the tenant has substantially succeeded in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of his name and identifying details.
Similarly, because the tenant has substantially succeeded, I have reimbursed the filing fee.
Both parties in this case were represented by Counsel. The general principle is that costs follow the event. As the tenant has been substantially successful the landlord will have some liability for costs.
Sections 102(2) and 102(3)(b) of the RTA provide that the Tribunal can order the unsuccessful party to pay reasonable costs to the other party. The issue is what are “reasonable costs” in the circumstances,
It is unusual for a Court or Tribunal in New Zealand to award full indemnity costs against the losing party. In the Tenancy Tribunal there is no schedule as to costs and to the Tribunal relies on common law case authorities that outline the general principles as to awards of costs.
I encourage the parties to seek to reach an agreement as to costs.
If agreement cannot be reached, then the parties have leave to come back to the Tribunal for an order. As I am no longer sitting in the Tribunal, that application, if made, will be dealt with by a different adjudicator.
Finally, I sincerely apologise to the parties for the delay in issuing this decision. J R Smith 31 October 2023

Tenancy Tribunal case 4345510 — Tenancy dispute at 24 Langana Avenue, Browns Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4345510 — Tenancy dispute at 24 Langana Avenue, Browns Bay, Auckland 0630

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions