What was Tenancy Tribunal case 4454921 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 4454921?

Compensation: Condition of premises…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4454921?

The dispute type was not classified.

Where can I read the official tribunal order for case 4454921?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9238823-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4454921 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 4454921?

Compensation: Condition of premises…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4454921?

The dispute type was not classified.

Where can I read the official tribunal order for case 4454921?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9238823-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4454921 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4454921 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Condition of premises and pests	$2,000.00	Condition of premises and pests
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

[Tenant 1] attended the hearing for the tenants. The landlord attended with her daughter and her property managers Yina Lin and Linela Zheng.

The tenants claim compensation for various alleged breaches of the Residential Tenancies Act 1986 (the Act) relating to the condition of the premises.

The landlord’s cross application claims loss of rent and expenses relating to the early termination of the fixed term tenancy. Background

This was a one-year fixed term tenancy from 27 May 2022.

The premises were not in a reasonable state of cleanliness at the start of the tenancy and the tenants deferred moving in until after the landlord had the premises cleaned.

The tenants were unhappy with various aspects of the premises during the tenancy including that they were cold, damp and mouldy, the ranch slider door could not be locked, the HRV system stopped working and had not been regularly serviced, an infestation of rats in the premises followed by flies, low shower pressure and trouble with builders next door.

The tenants complained to the property manager, and they took some action in response to the complaints. But the tenants did not want to remain in the premises for the full term of the tenancy and they asked to be released from it. The landlord accepted their early notice and the tenancy ended on 22 November 2022. The tenants filed their application on 1 December.

The landlord filed her cross application on the ground that she had released the tenants believing that it would settle all issues between the parties. Law

Section 45 of the Residential Tenancies Act 1986 (the Act) requires a landlord to provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.

The most recent Healthy Homes Regulations (such as the ventilation standards) applied to this tenancy 90 days after the tenancy began and therefore from 24 August 2022. Evidence

There was oral evidence from both sides. The following is derived from the documents provided by the parties.

The premises complied with all Healthy Homes Standards apart, possibly, for the draught stopping standard. The landlord produced documents that show that. A ground vapour barrier was installed before the tenancy began and the premises complied with the insulation standard.

A healthy Homes Report dated 22 February 2021 found that the premises did not comply with the draught stopping standard. It referred to an open fire place and gaps at the front door. There was no evidence in that report of damp or mould affecting the premises.

A pest control report dated 11 August 2022 suggested cutting back trees around the premises, sealing around the perimeter of the house and repairing holes

The landlord’s inspection report dated 26 April 2022, a month before the tenancy began, stated that some cleaning was needed. The photographs show that there was vegetation close to the house and in some cases touching the house.

The landlord paid for a professional clean of the premises and there is an cleaning invoice dated 15 June 2022 but the cleaning appears to have been done on 31 May and 1 June.

The HRV system filter was changed in May 2019 and then again in August 2022 after the tenants reported that the system had stopped working.

The tenants say that they undertook some cleaning of the premises themselves after they moved in. Damp and Mould

The allegation that the premises suffered from damp and mould must be proved by evidence just as other allegation must be proved. The claim must be proved on the balance of probabilities, meaning that it is more likely than not to be true.

There is very little hard evidence proving damp and mould in the premise in this case. The tenants pointed to black material around the vent for the HRV system, but the landlords disputed it was mould. Even if it was mould, that would not necessarily prove that the premises generally were damp and nor would it prove the cause of the damp. For the tenants to be entitled to a remedy, they would need to prove that the landlords were in breach of an obligation, such as to keep the premises in a reasonable state of repair, and that the breach caused dampness.

After considering all the evidence, including the documentary evidence, I find that this allegation has not been proved to the required standard. Pests

The tenants found rat droppings in the premises at the beginning of the tenancy. There came a point when the tenants were so disturbed by rats in the premises that they notified the landlord who called in pest exterminators. They came on three separate occasions and laid bait. That resulted in dead and decomposing rats in the premises which in turn resulted in maggots, and then an infestation of flies. The situation was extremely unpleasant for the tenants.

The fact that there were signs of rats in the premises at the beginning of the tenancy, the premises were not clean when the tenancy was due to begin, there was vegetation overhanging the premises and there were gaps around the premises that could allow rats into the premises leads me to conclude that this sequence of events came about due to the landlord’s failure to keep the premises in a reasonable state of repair and failure to provide the premises in a reasonable state of cleanliness.

The tenants are entitled to compensation for the landlord’s breach and its consequences. The tenants vacated the premises for a week due to the infestation and pest control measures but the effects on the tenants lasted considerably longer than that. The first complaint was made in early August and the pest control measures were completed at the end of September. The problem reduced the tenants’ enjoyment of the premises and disrupted their lives. Taking together the reduction in the value of the premises to the tenants and the upset and discomfort an award of $2,000 is appropriate. Cleaning

The premises were not clean at the contractual start date of the premises and that was a breach of the Act. The parties agreed to refer the start date and the landlords arranged for the premises to be cleaned. The tenants were not significantly put out by the deferral and so I find that no award is warranted for the breach. Ranch Slider

The ranch slider did not lock, and the landlord repaired it reasonably promptly after being informed. I therefore find that there has been no breach.

HRV

Premises are not required to have an HRV system but if one is provided it should work properly and be properly maintained. The system was overdue for a service and stopped working. The landlord then responded promptly by getting the filter changed.

I accept that there was a breach here, but I am not satisfied that it had any significant effect on the tenants’ enjoyment of the premises. There is no evidence that the tenants’ enjoyment of the premises improved due to the filter change. It is not clear that a working HRV system made any significant difference to the living tenants’ conditions. There is therefore no award for the breach. Builders

The builders working next door caused the tenants some problems including preventing them from using their driveway. But landlords are not responsible for the actions of neighbours who are not also their tenants. This was a problem for the tenants to address, although I note that the landlord did try to intervene on the tenants’ behalf. Compensation

I have awarded the tenants compensation for the breaches I have found proved. Plainly they are not entitled to compensation for breaches that have not been proved. The tenants claim moving costs due to the tenancy ending early. I do not make any award in that respect because I do not accept that the breaches were such as to entitle the tenants to end the tenancy early. It is the complaint that the premises were cold and damp that is the main reason the tenants wanted to leave the premises and that claim has not been proved.

As well, the tenants requested the landlord to end the tenancy early and the landlord agreed. It was resolved by consent and there was no suggestion at the time that the tenants would claim moving costs or any other costs from the landlord. That does not prevent the tenants from claiming compensation for prior breaches, but, in my view, it does militate against an award of compensation arising from the early termination itself. Landlord’s Claims

The landlord’s claims rest on the proposition that there was an agreement that their agreement to end the tenancy early settled all claims that the tenants might be entitled to bring against them. There was no express agreement to that effect and there is no evidence on which such an agreement can be implied.

If there were such an agreement, I don’t think it would entitle the landlord to bring claims arising from the early termination, but it would prevent the tenants from making their claims.

The landlord relies on ss44A and 50(1)(d) of the Act. This was a surrender of the tenancy by consent and so, read strictly, the sections appear to apply. But the circumstances here were that the tenants wanted to leave because they were unhappy with the condition of the premises, the landlord had a choice whether to consent or to hold the tenants to the agreement. They chose to consent, and they did not impose any conditions. The landlords cannot seek to recover expenses, let alone rent, in these circumstances.

The landlord’s application is therefore dismissed. Filing Fee

The tenants have been partly successful and so I have awarded them the filing fee. Suppression

The tenants have had significant success and there is no real public interest in their names being published in this order. I have therefore granted them name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4454921 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Condition of premises and pests	$2,000.00	Condition of premises and pests
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44