What was Tenancy Tribunal case 4355620 about?

The tribunal order states: By consent [The landlord/s] will provide [The tenant/s] with labour and transport

How much money was awarded in case 4355620?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4355620?

The primary dispute was 14-day notice. Related themes: State of repair, Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4355620?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8693941-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4355620 about?

The tribunal order states: By consent [The landlord/s] will provide [The tenant/s] with labour and transport

How much money was awarded in case 4355620?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4355620?

The primary dispute was 14-day notice. Related themes: State of repair, Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4355620?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8693941-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4355620 — 14-day notice

Order

By consent [The landlord/s] will provide [The tenant/s] with labour and transport for one day to assist her to move some of her belongings from [Tenancy address suppressed] on the following basis: a. [The tenant/s]’ belongings, but not her furniture unless specifically requested by her, will be removed. b. [The tenant/s]’ belongings will only be removed from the following areas: i. The living room; ii. The spare bedroom; iii. The ceiling space; and iv. The underfloor area. c. The belongings will only be taken to the storage unit and will not be disposed of unless [The tenant/s] specifically requests it. d. [The tenant/s] must not impede or hinder the work.
If [The tenant/s] does not comply with Order 1(d), her tenancy at [Tenancy address suppressed] may be terminated by [The landlord/s] on 48 hours’ notice, and possession will be granted to [The landlord/s].
[The tenant/s]’ application for a rehearing is dismissed.
All other applications are dismissed.
The Tribunal orders suppression of both party names and identifying details.

Reasons

On 20 July 2022 [The landlord/s] applied to terminate [The tenant/s]’ tenancy for a breach of her obligations outlined in the tenancy agreement and the Residential Tenancies Act 1986 (RTA) being a failure to keep the property clean and tidy. [The tenant/s] has lived at the property since 11 February 1999.
On 8 September 2022 [The tenant/s] applied for work orders, compensation and/or exemplary damages for alleged breaches of the RTA by [The landlord/s] (the cross application).
The landlord’s application was first heard on 9 September. Given [The tenant/s]’ cross application had just been filed, it was adjourned to a further hearing. [The tenant/s] was provided by Order of the Tribunal (the first Order) with some time to comply with the landlord’s 14 day notice dated 17 June. [The tenant/s] did not fully comply with the first Order and therefore on 17 October a conditional termination order was made (the second Order).
[The tenant/s] failed to comply with the second Order and therefore [The landlord/s] applied for an eviction warrant to enforce the termination. [The tenant/s] subsequently sought an application for a rehearing of the second Order on 19 December and a stay was granted pending decision of that application. [The tenant/s]’ application for rehearing was heard on 13 January 2023 along with her cross application.
By consent the application for rehearing was adjourned to 3 March in order that a site visit could be completed. The site visit occurred on 3 March and [The landlord's representative 1] and [The landlord's representative 2] attended representing [The landlord/s].
This decision follows the site visit and relates to [The tenant/s]’ applications for a rehearing and cross application. Consent order
It was agreed at the site visit that [The tenant/s] has made considerable progress in complying with the first 1 and second 2 Tribunal Orders. However, the property is still not reasonably clean and tidy as [The tenant/s] still has a number of belongings that are not stored adequately. Of particular concern are the living room and the spare bedroom. There is no freedom of movement in either room in fact the spare bedroom cannot be accessed.
As [The tenant/s] has made extensive efforts to comply with her responsibilities in the face of her medical conditions, it was agreed that [The landlord/s] would 1 9 September 2022 2 17 October 2022 provide some support and she will now accept that help. Therefore, the following was agreed: a. [The landlord/s] will provide labour of 2 – 3 people and transport to move [The tenant/s]’ belongings for one day, within the next fortnight. b. [The landlord/s] will provide [The tenant/s] with adequate notice of the visit. c. On that day the workers will remove [The tenant/s]’ belongings from the living room, spare bedroom, ceiling space and underfloor. d. The belongings will be removed to [The tenant/s]’ storage unit. e. The workers will only dispose of 3 items [The tenant/s] asks them to. f. [The tenant/s]’ furniture will be left at the premise unless she specifically asks the workers to remove it to the unit.
This time and work should be sufficient to remove enough of [The tenant/s]’ belongings to allow safe access to all areas of the house for [The tenant/s], her visitors and any [The landlord/s] worker. There is a significant amount of maintenance [The landlord/s] needs to undertake on the property but cannot until these areas are clear.
If this time is not sufficient and [The landlord/s] require further Orders, they may apply to the Tribunal as a matter of urgency and the application is to be referred to me for immediate directions on the papers.
[The tenant/s] has agreed with this process. However, if she withdraws her consent or prevents the workers from undertaking the work, the tenancy will terminate on 48 hours’ notice from [The landlord/s] 4 . [The tenant/s]’ applications Rehearing
[The tenant/s]’ application for a rehearing included a number of grounds which I cover individually as follows.
Firstly, I note that Section 105(1) of the RTA provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
Usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing or they were not able to properly present their case. A rehearing 3 Take to the transfer station 4 S78(3) RTA may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.
The District Court has held that if the Tribunal was simply wrong in its findings of fact, or its application of the law, this is not sufficient to establish a miscarriage of justice: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision, or to give them a second opportunity to present their case. Moral miscarriage of justice
[The tenant/s]’ first submitted ground for a rehearing is that as she has chronic fatigue syndrome it is debilitating and time consuming to comply with the time frames imposed on her for clearing out her home.
The initial 14 day notice to remedy was issued on 17 June 2022 and [The landlord/s] did not apply to the Tribunal for relief until over a month later. [The landlord/s] have not pushed the Tribunal proceedings to move faster, and both [The landlord/s] and the Tribunal have extended time frames throughout this process to allow [The tenant/s] more time to comply.
This Tribunal process has in fact been considerably elongated to accommodate [The tenant/s]’ needs with the consent of [The landlord/s]. Accordingly, I must dismiss this ground. Discrimination
I deal with this concern of [The tenant/s]’ below but as an allegation of discrimination by a landlord to a tenant is not a ground for a rehearing, I must also dismiss this ground. Healthy Homes
[The tenant/s] is saying here that as [The landlord/s] do not have to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) until 1 July 2024 they are acting too early by wanting to commence that work on her home now.
I also address this issue below but note that as this is not a ground for a rehearing but one of [The tenant/s]’ initial applications, I must dismiss it. The Charitable Objects and Purposes of [The landlord/s]
[The tenant/s] considers that [The landlord/s]’ application to terminate her tenancy is contrary to their Constitution as the Constitution is aimed at providing homes for people and yet their application is seeking to evict her from hers. The application was in fact intended to effect change to get the house to a standard that was safe and healthy for [The tenant/s] and her neighbour. [The landlord/s] have their own obligations to ensure their tenants are residing in safe and warm homes and they have not been able to achieve that to date due to the way [The tenant/s] lives.
Regardless of [The landlord/s]’s motivations or the way in which they went about addressing the issue, this is not a ground for a rehearing as it does not relate to Tribunal procedure, and accordingly must be dismissed. Summary
[The tenant/s] has therefore failed to establish the grounds for a rehearing. However, I note that whilst [The tenant/s] has been unsuccessful in her application for a rehearing, the Tribunal has effectively allowed one in the process employed to resolve these issues. The second order being the termination order which [The tenant/s] applied to have reheard, has effectively been replaced by this order which is providing [The tenant/s] further opportunity to keep her home. Maintenance
[The tenant/s] claims that [The landlord/s] has breached their obligations under section 45 of the RTA to maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
The alleged breaches relate to: a. A broken window in the back porch; b. A malfunctioning oven; c. Damp; d. The fireplace.
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 RTA. I deal with each concern separately as follows.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA and then allow access for the maintenance. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
I note [The landlord/s]’s general evidence that a number of contractors they have sent to the house have been turned away by [The tenant/s]. Window
The window in the back porch is cracked. [The tenant/s] says she spoke to [Redacted] about it some years ago, but it has not been discussed since. [The landlord's representative 1] says they were not aware of the crack as the window had not been accessible until recently.
Having considered the evidence I am satisfied that [The landlord/s] were not aware of the crack and if they had been were not able to do anything about it for access issues, until recently. I am satisfied that now that the area is accessible, and [The tenant/s] has agreed to allow tradespeople into the property, that [The landlord/s] will repair the window.
Accordingly, this claim is dismissed. Oven
[The tenant/s] says the oven burns food and smells and is liable to burst into flames. She says it has been a risk for seven years and so she prefers not to use it. She therefore has her own little oven that she uses.
[The landlord/s] say they weren’t aware the oven had issues as [The tenant/s] had told them that she prefers to use her own small oven which is why she did not use the one provided. Again, until recently access issues into the house have prevented them assessing the actual state of the house.
I am satisfied that [The landlord/s] was not aware of any potential risk of the oven but now that they are, and have access, will investigate the concern. Accordingly, this claim must also be dismissed. Mould
[The tenant/s] has significant mould issues in her home. She says they have only arisen in the last six years since a drain was installed, not by [The landlord/s], near the back of the section. It has resulted in water flowing under or near the house which causes significant damp in the house. [The tenant/s] says a number of her belongings have been ruined by the mould.
Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault. A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
Given the way [The tenant/s] has lived to date, I cannot accurately assess the reason for the mould. Having belongings piled up high from the floor in a haphazard manner creates ventilation issues. Windows cannot be opened; air flow cannot be promoted, and the house cannot be adequately heated. Further, [The landlord/s] cannot investigate the issue without access to all areas of the house.
Whilst it is clear that there is mould in the house, the true cause cannot be ascertained until the home is cleared. I am satisfied on the evidence that [The landlord/s] will be investigating this issue and actioning the required maintenance when they can obtain access. Therefore, this is not a breach of s45, and the claim dismissed. Fireplace
There is an open fireplace in the premise which [The landlord/s] have attempted to close off as they now have a policy of not allowing open fires. They wish to replace it with a wood burner or heat pump. Since the initial attempt, which was blocked by [The tenant/s], they have taken no further steps to ensure [The tenant/s] has sufficient heating. [The tenant/s] asks the Tribunal to direct [The landlord/s] to allow her to keep a fireplace.
[The landlord/s]’s obligation to provide heating is currently pursuant to Regulation 6 of the Housing Improvement Regulations 1947 5 . From 1 July 2024 [The landlord/s] will have to comply with the HHS which requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The Tribunal only has jurisdiction to direct that [The landlord/s] provide the statutorily required heating, a requirement that can be met by either a heat pump or a wood burner. The decision as to which is provided lies with [The landlord/s]. It is evident that [The landlord/s] are attempting to ensure they are complying with their statutory obligations and when the living room is clear, will be more able to do so. 5 Regulation 6: Every living room shall be fitted with a fireplace and chimney or other approved form of heating.
Accordingly, I do not consider that [The landlord/s] have breached s45 of the RTA and dismiss this claim. Unlawful entry
[The tenant/s] claims that [The landlord/s] workers have entered the premises over the years without consent or notice. She accepts they never come into the house without consent or notice but say they have often come to work on the gardens or outside without letting her know beforehand.
[The landlord/s] say that as [The tenant/s] does not use email, they usually try to call her to discuss the need to attend for maintenance. However, there may have been times when they could not raise her on the phone and so the trades attend and ask if they may do the work. They say [The tenant/s] has had a good relationship with their trades in the past and she has never asked them to alter their procedures in this respect.
A landlord may not enter the 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. Notably, the definition of premises in s48 does not include land or facilities. Therefore, entry onto the land, but not the interior of the premises, might not be a breach of s48. However, in some circumstances, entry onto the land could be a breach of quiet enjoyment under s38 RTA which is discussed below.
Breaching s48 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.
S48(2)(d) of the RTA requires landlords to give 24 hours’ notice of an intended entry into a premise for maintenance purposes. On the evidence provided I am satisfied that [The landlord/s] workers have never entered the home without doing so or obtaining consent. Accordingly, I do not find it proven that they have breached s48 and this claim must be dismissed. I discuss the entrances onto the property below. Harassment
[The tenant/s] claims that [The landlord/s] has harassed her for the previous five years. Her particular examples, which I address separately below, are: a. Their application for termination at this time having accepted the situation for a number of years. b. The termination being for disingenuous reasons. c. Taking photos of her belongings at inspections. d. Calling her a hoarder. e. The way they speak to her which she considers is patronising and judgmental. f. Attempting to comply with the Healthy Homes legislation well before they are legally required to. g. A refusal in 2019 to her wish to purchase the property. h. Having to remove her belongings as she does not consider it her responsibility as she feels she did not create the situation.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient. Application for termination
[The tenant/s] says that [The landlord/s]’s application to terminate her tenancy based on how she lives is disingenuous. She says she has lived this way for a number of years, and it has only been recent that they have taken issue with it. She believes they are just trying to evict her so they can demolish the house.
[The landlord's representative 1]’s evidence is that since he became the General Manager, he has been actively working on ensuring that all their tenants are safe in the way they live. His background is in health and safety and he believes his obligation is to his tenants to ensure they are safe.
He agrees steps have not been taken in the past to have [The tenant/s] address her situation, however a major part of the reasoning for this timing is [The landlord/s]’s upcoming responsibilities under the HHS. He is well aware this house is not meeting requirements and wants to address that, but he cannot do so if [The tenant/s] continues to reside the way she currently is.
Having considered the evidence, I understand why [The tenant/s] feels targeted now. She has been effectively allowed to live in a certain way for a number of years and now her tenancy is in jeopardy because of that. However, be that as it may, [The landlord/s] have a number of maintenance requirements they are legally required to be attending to. There is a great deal of work to do at the house to ensure it is a safe and healthy home for [The tenant/s], and compliant with the law. It is therefore [The landlord/s]’s obligation to get undertake this maintenance. They have shown that they have tried to work with [The tenant/s] but as they were unsuccessful have had to take the extreme action of applying to the Tribunal for relief.
I do not consider [The landlord/s]’s application a breach of [The tenant/s]’ quiet enjoyment. She is entitled to live as she pleases provided she does not place herself, the house and the neighbouring house in danger. Unfortunately, the way she keeps and stores her belongings is doing just that.
[The landlord/s] have a legislative responsibility to take the steps they are; accordingly, this cannot be a breach of s38. Photographs
A number of photos have been taken by [The landlord/s] employees of [The tenant/s]’ belongings during inspections. This and the way inspections are conducted has upset [The tenant/s] as she feels violated, particularly with photos being taken of her personal belongings.
As discussed above a landlord has a statutory and usually contractual obligation to maintain a property. Landlords often take photos to record the state of the property in order to ensure their compliance.
In Maguire & Wakai v Brazier Property Management Ltd (TT 07/03760/CH) it was held that the taking of 66 photos, 23 outside and 43 inside, many of which showed the tenant’s possessions, was an unreasonable interference. The photos were not being taken to record damage, but to record the whole property, and in this context, the photos were unreasonably intrusive. The manager’s contractual obligation to maintain the property did not justify the breach.
There is a difference between the taking of photos of a tenant’s belongings specifically and the recording of the state of the property. The situation is muddied here however as, until recently, the state of the house could not be seen because of the way [The tenant/s] stored her belongings.
On the evidence provided I am not satisfied that [The landlord/s] have gone too far in the taking of their photographs as they have had to monitor [The tenant/s]’ compliance with the 14 day notice and subsequent Tribunal Orders. Because what was at issue was [The tenant/s]’ over-retention of belongings, I consider [The landlord/s] was justified in taking the photos they did.
I do however consider that the touching or picking up of [The tenant/s]’ belongings without asking consent first and the commenting on the age and use of items, in particular by [The landlord's representative 2], a breach of s38. As stated, [The tenant/s] is entitled to keep the items she chooses to, provided she stores them in a way that does not present a risk. I am satisfied that [The landlord/s] have breached s38 in this respect.
I do not find it established that [The landlord's representative 2] has made these comments these in a way that amounts to harassment as there is not an intentional element to upset [The tenant/s]. However, it is important that respect is provided in such interactions. Hoarder
[The tenant/s] does not feel comfortable with [The landlord/s] referring to her as a hoarder and says she has just had a full life which brings with it a number of mementos and items.
[The landlord/s] have certainly used the term in reference to [The tenant/s], however, so has she. In her application for a rehearing [The tenant/s] says: I am a single woman, 73 years old suffering from a number of medical conditions including chronic fatigue syndrome and hoarding, a mental health condition similar in nature to and a form of OCD, Obsessive Compulsive Disorder.
It therefore appears that [The tenant/s] herself accepts that she suffers from a hoarding disorder, and as such reference to the term hoarder would be appropriate. Accordingly, the use of such word cannot be a breach of s38. In saying that, it is still essential that landlords use the upmost respect when dealing with and referring to their tenants who suffer from medical conditions. Interactions
[The tenant/s] says that [The landlord's representative 2] in particular speaks down to her. [The landlord's representative 2] says he is doing his best to work with [The tenant/s] but is very frustrated by the situation.
I find it most likely that there have been some interactions between the parties that have not been ideal and most likely there have been miscommunications between the parties. I do not find it established that [The landlord's representative 2] has harassed [The tenant/s] however I find it likely that he has breached s38 in the way he has interacted with her on occasion. This has been a fraught and difficult situation for both parties. I expect interactions to be more productive and respectful in the future. Healthy Homes
As above, [The landlord/s] is legislatively required to comply with the HHS by 1 July 2024. [The tenant/s] thinks they are acting too early on her home. I disagree. There is a considerable amount of work required on this property to ensure its compliance and [The landlord/s] are well within their rights and responsibilities to be activating it now. Purchase
[The tenant/s] had made much of [The landlord/s]’s refusal to allow her to enter their scheme of rent to buy for this home in 2019. This is an internal policy of [The landlord/s]’s that the Tribunal has no jurisdiction over. Accordingly, I can make no findings on the decision of [The landlord/s] to not allow [The tenant/s] to buy the property. Belongings
[The tenant/s] considers that it is not her responsibility to declutter her home as she feels she did not create the situation. Whilst I agree to an extent [The landlord/s] has allowed the accumulation of her belongings over the years, they are not responsible for bringing the items into the house and storing them as they have been.
It is [The tenant/s]’ statutory responsibility to keep the home reasonably clean and tidy 6 and she has not done so. Accordingly, it is her responsibility to return the property to such a state.
Therefore, [The tenant/s]’ claim that [The landlord/s] have breached s38 of the RTA to the extent of harassment, is declined. I accept [The tenant/s] has felt targeted and humiliated by this process and have considerable empathy for her. I also agree that some of the conversations had with her by [The landlord/s]’s employees have been less than respectful. However, I do not consider that [The landlord/s] have actively attacked her or intentionally acted to cause her distress. Accordingly, this claim is dismissed. Discrimination
[The tenant/s] claims that [The landlord/s] has discriminated against her on the basis of her age, medical conditions and way in which she lives.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) RTA. Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A Residential Tenancies Act 1986.
[The tenant/s] is of the view that [The landlord/s]’s application to terminate her tenancy is discriminatory. [The landlord/s] says they would be taking this action 6 s40(1)(c) of the RTA regardless of the circumstances of the tenant as the way in which the house is being used is unlawful and dangerous.
Having considered both parties submissions, I do not find it substantiated that [The landlord/s] are discriminating against [The tenant/s]. I see that they are attempting to work with her to ensure she can keep her tenancy whilst meeting their legal obligations. Accordingly, this claim is dismissed. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion if in the public interest. As this order is partly made by consent, and given the medical issues discussed here, I consider it appropriate to redact all party details from the published order.

Tenancy Tribunal case 4355620 — 14-day notice

At a glance

Tenancy Tribunal case 4355620 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions