What was Tenancy Tribunal case 4400002 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 4400002?

Compensation: Failure To Maintain: $3,250.00 awarded to tenant; Compensation: Power: $1,061.00 awarded to tenant; Rent Arrears: $10,200.00 awarded to landlord

What type of tenancy dispute was case 4400002?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4400002?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9055532-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4400002 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 4400002?

Compensation: Failure To Maintain: $3,250.00 awarded to tenant; Compensation: Power: $1,061.00 awarded to tenant; Rent Arrears: $10,200.00 awarded to landlord

What type of tenancy dispute was case 4400002?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4400002?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9055532-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4400002 — Rent arrears

Claims and awards in Tenancy Tribunal application 4400002 — net $5,889.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$10,200.00		Rent arrears
Compensation: power		$1,061.00	power
Compensation: failure to maintain		$3,250.00	failure to maintain
Total award	$10,200.00	$4,311.00
Net award	$5,889.00
Total payable by Tenant to Landlord	$5,889.00

Claims and awards in Tenancy Tribunal application 4400002 — net $5,889.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$10,200.00		Rent arrears
Compensation: power		$1,061.00	power
Compensation: failure to maintain		$3,250.00	failure to maintain
Total award	$10,200.00	$4,311.00
Net award	$5,889.00
Total payable by Tenant to Landlord	$5,889.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The tenant/s] must pay [The landlord/s] $5,889.00 immediately, as calculated in the table below:

Reasons

Both parties have filed proceedings in the Tribunal.
The claims were part heard on 9 November 2022 and adjourned for further evidence.
The matter was set down for the completion of the evidence on 17 May 2023. Both parties attended the hearings on 9 November 2022 and 17 May 2023.
The parties agreed that the tenant would rent an existing house on a development site pending the completion of a new terraced house being built for her on the site.
The Tribunal considered whether this tenancy was excluded from the Residential Tenancies Act pursuant to section 5 (o) which states there is an exclusion, “where the tenant is the purchaser of the premises under an agreement for sale and purchase with the landlord as vendor”. However, although the new premises will be situated somewhere on the larger development site, as the actual premises being rented are different from the premises being purchased this tenancy is not excluded from the RTA.
[The landlord/s] stated in his application that the tenancy commenced on 24 June 2021. [The tenant/s]’s application states 26 June 2021. The parties dispute the timeframes around this tenancy. The tenancy agreement signed by [The landlord/s] but unsigned by [The tenant/s] records the tenancy commencement as 26 June 2021. The latest rent summary provided commences from 26 June 2021. Having considered the evidence the Tribunal finds that this tenancy commenced on 26 June 2021.
The parties advised that [The tenant/s] moved out of the premises on 26 September 2022.
The landlord is seeking rent arrears in the sum of $11,400.00 to 23 September 2022, power charges in the sum of $354.09 and reimbursement of filing fee.
The tenant is disputing the rent arrears and claims that the agreed total rent was for a fixed amount and that as she has already exceeded this amount no more rent is owed. The tenant stated that two rent payments made by her in September 2022 have not been included in the rent summary provided by the landlord.
The tenant is further claiming a set off against any rent, if owed, for the following breaches by the landlord: (a) Failure to sign a tenancy agreement (b) Failure to ensure the tenancy agreement contains the required information (c) Breaching the obligation to provide and maintain the premises in a reasonable state of repair as follows: - Failure to address water tank filter issues in a timely manner - Failure to remedy leaks in the kitchen, lounge and entranceway - Failure to repair a hole in the entrance wall - Failure to remedy draught issues - Failure to provide a rail for the stairway (d) Breach of agreement to provide a fence
The landlord disputes the tenant set off claims.
The Tribunal has heard evidence from both parties and from [the witness].
The Tribunal will consider firstly the landlord rent arrears and power claim and then the tenant set off claims.

Does the tenant owe rent arrears?

The landlord has applied for rent arrears and has provided rent records which record the amount owing to 23 September 2021 in the sum of $11,400.00.
The tenant disputes the rent owed on the basis that there was an agreement she pay a fixed amount of rent and no more and as she has exceeded the agreed amount no more is payable. In order to determine this the Tribunal needs to consider the terms of the agreement between the parties.
[The tenant/s] moved into the premises on or about 26 June 2021.
The landlord produced a tenancy agreement with landlord and tenant details recorded, no rent amount recorded, a commencement date of 26 June 2021 recorded and stating this tenancy was for a fixed term to 26 June 2022. The agreement is signed by the landlord and dated 17 June 2021. The landlord stated that one copy of this agreement was given to the tenant’s lawyer but was not returned signed by the tenant. The tenant initially stated that she had only seen the attached property inspection report which is ticked by both parties and signed by the landlord. The tenant then recalled that she had completed her personal details in the tenant details section of the tenancy agreement.
The tenant did not dispute the weekly rent was $600.00 as recorded in the rent summary but stated that prior to the tenancy commencing she had a conversation with the landlord and told him that with the cost of purchasing the house to be built she only had $15,000 available to pay rent until the build was completed and the landlord agreed to this.
The landlord denied that there was any agreement to limit the total rent to $15,000 and stated that the rent summary records that the tenant had already paid well over $15,000 in rent when she stopped paying in May 2022.
No written evidence regarding the agreement to a $15,000 rent limit was provided.
The tenant stated that she understood the new house would be built in 6-8 months. The landlord disputed the time frames for the new build that the tenant expected.
The tenancy commenced in June 2021. An agreement for sale and purchase for the new build was not signed until December 2021. The parties dispute regarding the building contract is acknowledged but is outside of this jurisdiction.
The landlord sent a further rent invoice to the tenant on 8 July 2022 which was not paid.
The tenant referred to a meeting with the landlord on 17 July 2022 when [the witness] was also present and stated that at that meeting the landlord agreed to her stopping the rent payments. [The witness] gave evidence that at that meeting the issue of rent was brought up and he stated that the tenant needed help and the landlord replied “Don’t worry about it”. [The witness] understood this to mean he would help the tenant out. The landlord stated that this meant he would give the tenant longer to pay the rent.
The landlord sent a further invoice to the tenant on 13 September 2022 for rent to 17 September 2022.
The tenant responded to the invoice by email stating that if the landlord was seeking further rent she was moving out.
The tenancy ended on 26 September 2022.
The tenant paid rent at the end of each two to three month period upon receipt of an invoice from the landlord. These invoices were based on a weekly rental of $600.00 and the tenant paid these invoices until May 2022. The total rent paid by the tenant so far is $28,800.00.
As the verbal evidence of the parties is in conflict the Tribunal is reliant on the written evidence of the terms of this tenancy. The written evidence includes the tenancy agreement signed by the landlord and partly completed by the tenant but unsigned by her. The written evidence also includes the invoices sent to the tenant recording a weekly rent of $600.00 which were paid by the tenant until May 2022 and the email communication in September 2022 indicating a dispute regarding rent payment at that time.
The Tribunal finds on the evidence that the parties entered into a tenancy for the tenant to rent the premises for $600.00 per week. The agreement records a fixed term for one year which continued as a periodic tenancy from June 2022.
The landlord provided a rent summary to 23 September 2022 recording rent arrears of $11,400.00. The tenant is liable for rent of $600.00 per week for the period that she was in occupation at the rented premises.
The Tribunal acknowledges that the tenant expected that her new premises would have been ready some time ago and she may file a separate claim regarding the disputed building contract in another jurisdiction.
The tenant provided proof of two payments of $600 made on 20 and 28 September 2022 that are missing from the rent summary. Accordingly, the amount of $1200 is deducted from the arrears and the rent arrears to the end of the tenancy are ordered in the sum of $10,200.00. Power charges
The landlord has applied for power charges, however, the tenant disputes these and seeks a set off against the rent arrears on the basis that the power was not exclusively used by her.
Section 39 of The Residential Tenancies Act 1986 states that the landlord is responsible for all outgoings that apply whether or not the premises is occupied. The tenant is responsible for all outgoings in respect of the tenancy premises that are exclusively attributable to the tenant’s occupation of the premises or the tenant’s use of the facilities. This requires a transparent means of quantifying the use of power at the tenancy premises during a tenancy.
The power was connected in the landlord name and the fixed charges are payable whether or not the premises are occupied. There is no evidence that these were deducted from bills given to the tenant. Furthermore, the tenant claims that the landlord used a room in the house as an office and there was no means of knowing how much power she used
The landlord responded that he did not use a lot of power in his office. He was not able to prove how the power used by his office was separated from the power used by the tenant. As there is no evidence that the landlord deducted the fixed costs from the power invoice and the power used cannot be exclusively attributed to the tenant’s occupation of the premises the Tribunal declines the landlord’s claim for compensation for power.
The landlord has failed to provide a transparent means of quantifying power use as there were no separate meters and part of the premises were used as the landlord’s office. The Tribunal accepts that the tenant did use some power during the tenancy but must take a conservative approach as exclusive use cannot be quantified. The landlord is ordered to refund the tenant one third of the $3185 power paid in the sum of $1061.00. This amount will be set off against the rent arrears ordered.

Did the landlord provide a tenancy agreement?

[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
The landlord provided a written tenancy agreement to the tenant. The tenant stated that she had completed her details in the agreement but it was not signed by her.
As the landlord signed the tenancy agreement and provided a copy to the tenant the landlord has complied with their obligations. Therefore, this claim is dismissed. Did the landlord fail to ensure that the tenancy agreement contained the required information?
[The tenant/s] claims the landlord has not included details in the tenancy agreement as required by the RTA.
The landlord must include in the tenancy agreement the following information about insurance of the premises: (a)if the premises are not insured, a statement that they are not insured; and (b)if the premises are insured, a statement— (i)setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii)informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)). See section 13A (2) Residential Tenancies Act 1986.
The landlord did not complete the insurance form attached to the tenancy agreement. The form includes a statement “Landlords must either complete this form or attach a statement containing the same information”.
The landlord produced a copy of an email to the tenant dated 18 June 2021 which contained the required insurance information.
Having considered the evidence the Tribunal is satisfied that the landlord provided the tenant with the required insurance information at the time of the commencement of the tenancy. Therefore, this claim is dismissed. Did the landlord fail to provide and maintain the premises in a reasonable state of repair?
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair
The tenant claims that the landlord breached their obligations as follows: (a) Failure to address water tank filter issues in a timely manner - The premises are on tank water. The tenant claimed that the water filter was dirty and they had no drinking water for 6 weeks while they awaited a filter change and needed to purchase water. In support of this claim the tenant produced photographs of dirty water filters and copies of text correspondence with the landlord from early in the tenancy following up about the filter replacement. The filter was replaced on 6 August 2021. The landlord disputed this and claimed that the water was drinkable and he replaced the filter at the tenant’s request and installed a UV filter as an extra precaution. Neither party produced any water testing evidence regarding whether or not the water was drinkable. The Tribunal is satisfied that the 6 week delay in installing a clean filter caused the tenant a loss of enjoyment of the premises during that time, however, there is insufficient evidence that the water was not fit for drinking. (b) Failure to remedy leaks in the kitchen, lounge and hallway - There was no dispute that there were leaks throughout the tenancy. There was a leak in the hallway that was repaired. The tenant claimed that the leak occurred again. There were leaks in the kitchen from the light which recurred. There was a leak in the lounge by the fireplace. The tenant provided photographs of water dripping on to the kitchen bench and wetting her kitchen utensils and close to appliances. The tenant also provided photographs of water on the tile floor. The tenant provided copies of communication to the landlord regarding the leaks in the kitchen and water coming down the wall in the lounge. The landlord made some attempts to repair the leaks but the problems continued. The Tribunal is satisfied that although attempts were made the landlord failed to remedy the leaks sufficiently which resulted in ongoing water problems and a loss of amenity for the tenant in the use of the premises. (c) Failure to repair a hole in the entrance wall - The tenant provided a photograph of a hole in the entranceway at the base of the skirting and claimed that this allowed pests to enter the premises. The landlord disputed this and claimed that the hole was only the width of a pen. The area around the hole is roughly plastered and unpainted. The landlord acknowledged this and stated it was due to a leak repair that had not been completed. (d) Failure to remedy draught issues - The tenant stated that there was an ongoing draught issue coming from the doorway into the office area used by the landlord. This area was only separated by a locked door and the tenant had to put tape along the gap at the bottom of the door to try and prevent the draught. A photograph was provided. (e) Failure to provide a rail for the stairway – The tenant stated that there was no rail on the stairway and the carpet was slippery. The landlord stated that he was no informed there was an issue with the stairway. There was insufficient evidence provided to prove this claim. (f) Failure to provide a fence – The tenant claimed that the landlord agreed to erect a fence for her dog and failed to do so. The landlord stated that he agreed to the tenant erecting the fence at her cost and he was willing to assist. There is no requirement that the landlord provide a fence unless this was an agreed term of the tenancy. There is no written record of an agreement and the parties’ evidence is in conflict. The Tribunal is not satisfied that the tenant has proved this claim on the balance of probabilities.
Having carefully considered the evidence the Tribunal finds on the balance of probabilities that the landlord failed to provide and maintain the premises in a reasonable state of repair due to the ongoing leak problems, the delay in replacing the water filter, the poor quality of repair in the hallway and the draught from the landlord office.
The Tenants’ claim for compensation is in the nature of general damages for the inconvenience and loss of amenity resulting from the maintenance issues at the premises. The Tribunal has jurisdiction to make such award pursuant to section 77(2)(n) of the Act: Eayrs v Hindmarsh, DC Wellington, TT223/93, 12 November 1993. I find that the ongoing issues throughout the tenancy affected the tenant’s use of and enjoyment of the premises and award an amount of $50 per week, for the 65 -week tenancy, being $3250.00 in compensation. This amount is set off against the rent arrears ordered. Filing fee/Suppression
Because both parties have had some success with their claims I have not reimbursed either filing fee.
The Tribunal may on the application of any party or on its own initiative make a suppression order, having regard to the interests of the parties and to the public interest. Section 95A Residential Tenancies Act 1986. Having considered the factors in this case including that both parties have had substantial success with their claims and the ongoing building contract relationship between the parties the Tribunal grants suppression as sought.

Tenancy Tribunal case 4400002 — Rent arrears

At a glance

Tenancy Tribunal case 4400002 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the tenant owe rent arrears?

Did the landlord provide a tenancy agreement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the tenant owe rent arrears?

Did the landlord provide a tenancy agreement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions