Published tribunal order
Tenancy Tribunal case 4472603 — Tenancy dispute at 43B Puriri Street, Nawton, Hamilton 3200
Decided 4 Sept 2023 · Published 4 Sept 2023 · Application 4472603
- Cleanliness
- Exemplary damages
- Harassment
- Leaks
- Mould & damp
- Property damage
- State of repair
- 14-day notice
Order
- No suppression orders apply around publication of this decision.
- The landlord must pay the tenant $ 1,025.00 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- The tenancy commenced on 10 January 2022. The tenant filed their claim on 26 December 2022. The tenancy ended on 17 March 2023. On 30 March 2023, there was a telephone Case Management Conference to confirm the claims and compensation sought. On 13 June 2023, the matter was set down for an in person hearing before me. The evidence was heard on 31 March 2023. This is a reserved decision.
- The tenant’s claims are as follows: a) That the landlord has failed pursuant to section 45(1)(b) of the Residential Tenancies Act 1986 (The “Act”) to provide and maintain the following in a reasonable state of repair: (i)Exterior wall damage to garage, (ii)Decking boards that are sinking and exposed nails. Unsafe to walk on, (iii)Peeling paint on the ceilings and trims, (iv)Kitchen floor panels that are lifting and shifting, (v)Cold tap in kitchen falls off and the tap leaks / drips, (vi)Badly damaged laundry tub cupboard, (vii)No function indicators on oven. Needs replacement, (viii)Cracked bathroom sink, (ix)Handrail in bathroom falls off, (x)Shower leaks. Mould is forming, (xi)Pavers in driveway are sinking. Poor drainage during heavy rain. The tenant is seeking compensation in the form of a rent reduction of $50.00 per week from 10 January 2022 to the end of the tenancy on 17 March 2023, 60 weeks, totalling $3,000.00. b) That a rent increase from $470.00 to $500.00 per week effective 10 January 2023, resulted in a rent that exceeded the market rent by a substantial amount. Section 25(1) of the Act. The tenant is seeking a refund of the increase from 10 January 2023 to the end of the tenancy of $300.00. c) On 20 December 2022, the landlord issued a 90-day notice to terminate the tenancy on 20 March 2023. The notice was issued under section 51(2)(f) of the Act , on the basis that extensive alterations, refurbishment , repairs , or redevelopment of the premises would be carried out by the landlord, and that it would not be reasonably practicable for the tenant to remain in occupation while the work was being undertaken, and that the work was to begin, or material steps towards the work would be taken within 90 days after the termination date. The tenant claims that the grounds for giving the notice were false and is seeking compensation of $1,000.00. The tenant also claims that the landlord issued the notice knowing that the grounds were false and is seeking exemplary damages.
- The onus of proving these claims will rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Act. Failure to maintain
- Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair.
- A “reasonable” state of repair is not an absolute standard and must be assessed objectively and will take into account the age and character of the property.
- The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe 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.
- In Collins and Bertoni v Professionals Hutt City Limited, DC Wellington CIV 2009-085-001431, 24 February 2010 the Court stated: “I consider that the obligation of the landlord, under section 45, is to investigate and repair the defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”.
- The obligation under section 45(1)(b) corresponds with that under section 40(1)(d), which requires the tenant to notify the landlord as soon as possible after the discovery of damage or need for repairs.
- In each of the matters set out at paragraph 2(a) (i) – (xi) to establish that there has been a breach by the landlord, I must be satisfied regarding the nature of the defect, whether it was reported to the landlord, and whether the landlord responded appropriately. Exterior wall damage garage
- The tenant states that during the pre-tenancy inspection with the landlord, they noted a hole in the side of the garage wall. The garage wall appears to be fibrolite. The tenant has produced photographs of the damage which on the inside appears to have been covered with cardboard by a previous tenant. The tenant states they were told that the damage would be fixed. The tenant raised the issue again in an email dated 01 May 2023, and then again in a 14-day notice 26 December 2022. The notice was the only one and was issued on the same day that the tenants filed their application. The matter remained unresolved at the end of the tenancy. The tenant stated it affected the weather tightness of the garage in heavy rain, although are unable provide further details. There is no evidence of any flooding or damage caused to any property stored in the garage.
- The landlord states that the tenant was aware of the damage at the start of the tenancy but had deemed the condition of the garage as being reasonable in the pre tenancy checklist. The landlord stated that the tenant was eager to move in without delay and did not express any urgency or importance in repairing the damage, which had existed for some time. The landlord cannot recall receiving the email on 01 May 2022 but acknowledged that it had been sent to their email address. The landlord stated that a decision was made to prioritize more pressing issues raised in the email relating to wiring in the main house. The landlord accepted that the matter had been raised again in the 14-day notice on 26 December 2023, but believed that since they had given notice on 20 December 2022,( to which the tenants had given their own notice to vacate on 17 March 2023), and further, that the tenant, in their view had been threatening and obstructive, and impeded tradespeople, any repair could wait until after the end of the tenancy. While the tenant accepted that around October – November 2022 that the landlord / tenant relationship had soured, they denied making any threats or acted in a way that obstructed the landlord from exercising their rights to conduct inspections and carry out repairs.
- I am satisfied that although the damage had been acknowledged by the tenant at the commencement of the tenancy, it was brought to the landlord’s attention as an unresolved issue on or around 01 May 2023. I am not satisfied that the landlord has responded appropriately. There is insufficient evidence to establish that the tenant interfered with the landlord’s obligations to investigate reports of damage.
- Although the claim is substantiated, based on the evidence the loss to the tenant has been minimal. I decline to grant a rent reduction and instead award the tenant $100.00 damages for loss of amenity. Decking boards
- The tenant stated that the wooden deck at the property was in a general state of disrepair, with sagging boards and protruding nails. The tenant has produced photographs showing to small areas of deck, which they state are indicative of the overall condition of the deck. The tenant stated that they had hammered in the nails, considering them a safety hazard. The tenant cannot recall raising the matter with the landlord. However, having received a notice of a rent increase and subsequently a notice to terminate the tenancy, the tenant formed the view that the landlord had been neglectful concerning maintenance. On 26 December 2022, they issued a 14-day notice, which mentioned the deck for the first time. The tenant stated that, although the landlord had acknowledged the matter in an email dated 06 January 2023, it was not addressed and remained unresolved at the end of the tenancy.
- The landlord confirmed that they were made aware of the issue for the first time when they received the 14-day notice on 26 December 2022. The landlord cited similar reasons regarding the garage, related to the tenant’s conduct, for choosing to postpone any investigation until after the end of the tenancy. The landlord stated that at the end of the tenancy they discovered the deck to be in a reasonably good condition, disputing the tenant’s assertion that it was not. Arguing that the sagging board was, in fact, a board that had been replaced by a previous tenant using one of a lesser depth, rather than damage as claimed. The landlord also noted that the tenant had hammered in any loose nails themselves.
- Attached to the landlord’s email of 06 January 2023, was a 14-day notice advising the tenant that they were in breach of their obligations to raise defects as soon as possible. The landlord has submitted that they were not given an opportunity to respond to the tenant’s notice of 26 December 2022. I cannot accept this.
- The obligation to respond to concerns raised about the condition of the property remains in effect until the end of the tenancy. The fact that both the landlord and tenant had given notice to terminate the tenancy did not relieve the landlord of the obligation to investigate matters raised. Once again, based on the evidence I am not satisfied that the landlord had valid grounds to defer addressing these concerns until the end of the tenancy.
- While I am satisfied that there has been a breach, the evidence does not support a finding that the deck was generally in a poor condition. Considering the evidence there appears to have been a minimal impact on the tenant’s enjoyment of the property, for which I award compensation of $50.00. Peeling paint on the ceilings, trims, and skirting boards
- The tenant has produced close - up photographs of individual areas of peeling and chipped paint in the ceilings, walls and skirting boards in the kitchen, lounge / living room, and hallway. The tenant expressed a concern that this poses a health and safety risk, especially in the kitchen. Although the matter was raised for the first time in the 14-day notice of 26 December 2022, the tenant claims that it would have been apparent to the landlord during inspections. I am advised that inspections were conducted regularly up until November 2022, either in person or by video. The tenant stated that although the landlord had acknowledged the matter in an email dated 06 January 2023, it was not addressed and remained unresolved at the end of the tenancy.
- The landlord is uncertain about the property’s age, while the tenant believes that it was built in the 1980’s. The photographs suggest construction in the 1980’s / 1990’s and subsequent modernisation. This was confirmed by the landlord who stated that the property had been renovated shortly before the commencement of the tenancy. Each room had been repainted, new vinyl flooring installed in the laundry, kitchen, and bathroom, new carpet laid in the hallway and living room, and the shower and toilet had been replaced.
- The landlord denied that the matter had been raised at any inspection, whether in person or by video, and that the first they had discovered the issue was during an inspection in November 2022, when they noted some paint peeling from the ceiling. Although the matter was raised by the tenant in the 14-day notice, as previously mentioned the landlord chose to postpone addressing the matter until the end of the tenancy. The landlord also stated that repainting the area would in their view result in fumes unbearable to the tenant.
- While I am not satisfied that the landlord responded appropriately to the notice, I am also not convinced that there has been any loss to the tenant. On the evidence, I am not satisfied that the damage is more than superficial, nor do I consider it poses a risk to the tenant’s health and safety. No compensation is awarded. Kitchen vinyl floor lifting and shifting
- The tenant has produced photographs showing two areas of the vinyl flooring, laid in panels, which are lifting at the join. The tenant stated they placed a mat over the affected area, and there is no evidence that it impacted their ability to use the kitchen. The tenant states that they might have mentioned it during one of the video inspections but cannot be certain. The tenant included the matter in the 14-day breach notice, which the landlord acknowledged on 06 January 2023, but did not address.
- The landlord denies that it was raised until the 14-day notice. The landlord has previously stated reasons for not addressing the matter. At the end of the tenancy, the landlord observed the two areas shown in the photographs and noted that the entire floor appeared to have lifted and shifted, indicating that there had likely been a fault with how it was installed.
- While I am satisfied that there has been a breach, based on the evidence, it seems to have had a minimal impact on the tenant’s ability to use the kitchen, for which I award compensation of $50.00. Cold tap in the kitchen
- In the 14-day notice dated 26 December 2022, the tenant advised the landlord that the cold tap to the kitchen sink was damaged. On 06 January 2023, the landlord acknowledged the damage, which had not been raised previously. On 13 January 2023, a plumber attended the property and repaired the tap. The landlord has responded appropriately, and there is no breach. Door to laundry tub cupboard
- The tenant has produced a photograph of the laundry tub cupboard, showing that the door on the right-hand side is damaged. The tenant describes the door as warped and hanging off its hinge at the top. While the tub, into which the washing machine drained, was functional, the cupboard space below was not, and that they had to store items usually stored in the cupboard elsewhere. The tenant claimed they had raised the matter with the landlord at the pre tenancy inspection and had been advised that it would be addressed. The tenant stated that it was not, and they raised it again on 01 May 2023. The tenant stated they also recalled raising it again during one of the video inspections. It is referred to in the 14-day notice.
- The landlord stated that the tenant accepted the damage at the commencement of the tenancy but as they did not intend using the cupboard there was no urgency in repairing it. The landlord claimed they could not have repaired the door because the tenant’s washing machine was pushed against the side of the cupboard, hindering the door from opening. After viewing the photograph, I do not accept the landlord’s submission. At the end of the tenancy the landlord repaired the cupboard doors.
- I am satisfied that the landlord had been made aware of the issue. Unlike the cold tap, and the shower leak, which I will deal with later, the cupboard door appears to fall into the category of issues that the landlord chose to defer until the end of the tenancy.
- I am satisfied that the landlord has breached their obligations under section 45(1)(b) of the Act. Based on the evidence, it appears to have had a minimal impact on the tenant’s enjoyment of the property, for which I award compensation of $50.00. Oven indicators
- The decal indicators on the oven had partially worn off. A photograph has been produced. At the commencement of the tenancy the landlord provided the tenant with a diagram that could be used as a guide when operating the oven functions. The elements were unaffected. The tenant stated that they accepted this at the commencement of the tenancy, but later raised it as an issue during the video inspections and in the 14-day notice dated 26 December 2022.
- The landlord agreed some of the markings had been worn off, due to wear and tear, and that they had provided a diagram as a guide. The landlord denied that it had been raised as an issue during the video inspections and asserted that it had not been raised until the 14-day notice. At the end of the tenancy the landlord discovered that they could in fact obtain replacement decals.
- In failing to properly investigate the matter and respond before the end of the tenancy in March, I find that the landlord has breached their obligations under section 45(1)(b). However, the tenant could still use the oven. Based on the evidence, I am not satisfied that the breach has necessarily resulted in any loss of enjoyment by the tenant. No compensation is awarded. Cracked bathroom sink
- At the commencement of the tenancy the landlord pointed out a crack in the bathroom sink, stating it had formed when the sink was installed. The crack is superficial. The tenant stated that there was no sign of any leaking, and they agreed that it did not affect their use of the sink. While the tenant included the matter in their 14 days’ notice they accept that it is not damage requiring repair. There is no breach. Handrail in bathroom
- The tenant has produced a photograph of a small hand towel rail in the bathroom that appears to have come away from its attachment to the wall. It is unclear whether the matter was raised with the landlord until it was included in the 14-day notice dated 26 December 2022, after which, although acknowledged by the landlord, it remained unresolved. The landlord stated that at the end of the tenancy they discovered that a small screw attaching the rail to its base had come out. The matter was easily resolved.
- While I am satisfied that there has been a breach, based on the evidence it appears to have had a minimal impact on the tenant’s ability to use the bathroom. I therefore award compensation of $25.00. Leaking shower
- The tenant states that there was a leak from the back corner of the shower which they state caused mould to form on an adjacent skirting board. The tenant has produced a photograph showing a small patch of discolouration on the skirting board in question, which the tenant claims was removed through cleaning. The tenant raised the matter with the landlord for the first time on 26 December 2022. The same plumber who fixed the cold tap in the kitchen applied silicone to the leak. There is no evidence of any further issues arising. I am satisfied that the landlord responded appropriately. I am not satisfied that there were any ongoing issues with mould or dampness. There is no breach. Driveway
- The tenant has produced photographs showing two sections of the cobbled driveway where water has pooled after rainfall. The tenant states that this was an ongoing issue, although they cannot recall raising it with the landlord previously. It was raised in the 14-day notice of 26 December 2022. As with the other matters where I have found there to be a breach, although acknowledged by the landlord, they did not visit the property and inspect the issue. The landlord stated that at the end of the tenancy they lifted and re-laid the cobbles in the affected areas shown. Although the landlord has breached their obligations, on the evidence, I am not satisfied that there has been any loss suffered by the tenant, and I make no award for compensation. Market rent
- On 04 November 2022, the tenant was advised of a rent increase from $470.00 to $500.00 per week effective 10 January 2023. The tenant claims that this increase, based on what they believe to be the generally poor condition of the property, was unjustified and resulted in a rent that exceeded the market rent by a substantial amount.
- The tenant is seeking an order under section 25 (1) of the Act declaring that the rent exceeded the market rent by a substantial amount and a refund of the $30.00 paid from 10 January 2023 until the end of the tenancy.
- Market rent is defined in section 25(3) of the Act. 25(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.
- The onus of showing that the rent exceeds the market rent by a substantial amount rest with the tenant. To determine the matter, as stated in section 25 (3), the Tribunal must be able to conduct a comparison between the property and other comparable properties in the area. The property has two bedrooms, kitchen, lounge / dining room, toilet, bathroom, and garage. However, the tenant has not provided any evidence of any comparable properties in the area, seeking solely to rely on the condition of the property alone. The Tribunal cannot to make a proper assessment based on this alone. There is insufficient evidence. The claim that the rent exceeds the market rent is dismissed. Invalid notice to terminate with knowledge
- On 20 December 2022, one day after a previous Tribunal hearing in which both parties were unsuccessful, the landlord served the tenant a notice to terminate the tenancy on 20 March 2023. The termination was based on the landlord’s intention to undertake extensive alterations, refurbishment, repairs, or redevelopment, and belief that it was not practicable to do so with the tenant in the property.
- Upon receipt of the notice the tenant, believing that they had to, gave their own notice to terminate the tenancy on 17 March 2023.
- The tenant has not claimed that the notice was retaliatory. However, the tenant argues that the notice to terminate the tenancy was false, lacked proper grounds, and further that the landlord knew this was the case. The tenant is seeking lost wages and general damages for inconvenience, and exemplary damages. Law
- Under section 51(2)(f) of the Act a landlord may seek to end a periodic tenancy on the basis that they intend to undertake extensive alterations, refurbishment, repairs, or redevelopment and that it would not be practical to do that with the tenants in occupation of the property.
- Under section 60AA of the Act is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice. Under section 109(3) of the Act the Tribunal may award exemplary damages of up to $6,500.00,
- The burden of proving that the landlord issued or purported to issue the notice knowing that they did not have grounds rests with the tenant.
- The mental state of “knowledge” is not defined in the Act. In the case of Kerr v R [2012] NZCA 212, the Court, dealing with knowledge in a criminal context, held that knowledge meant “knowing or believing in a state of affairs”.
- The relevant time for determining the landlord’s knowledge is when the notice is given.
- The matters to determine in this case: 1) Is the notice given valid for form? In this case did the notice give the tenant the minimum time required? 2) Based on the evidence provided, is the Tribunal satisfied that the alterations, refurbishment, repairs, or redevelopment genuinely intended by the landlord or owner such that it would not have been reasonably practicable for the tenant to remain in occupation, 3) If the notice issued is invalid under 1) or 2), did the landlord, at the time they issued the notice, have knowledge that they did not have grounds.
- The notice is valid for form in that it was served by email before 5pm on 20 December 2022. The full 90 days was given.
- The tenant has produced an online listing advertising the property available for rent on 18 March 2023, a day after the tenant vacated. The landlord stated that they had engaged an agent to relist the property on their behalf, with availability from 31 March 2023, not 18 March 2023. The landlord claimed that the listing was amended and that on 31 March 2023, new tenants moved in. The landlord stated that they used the fortnight to conduct what they considered extensive repairs that could not have been completed with the tenant in occupation, in addition, the landlord stated that the tenant’s previously obstructive behaviour would have made it impracticable to attempt the repairs with the tenant at the property.
- Dealing first with the scope of the repairs. The landlord has listed the repairs that they planned and completed in the fortnight before reletting the property: -Painting the ceilings in the kitchen, hallway, living room, and bathroom, -Repairing the vinyl flooring in the kitchen, -Repairing the sunken areas on the driveway, -Repairing the hole in the garage wall, -Repairing the laundry cupboard, -Repairing the towel rail in the bathroom, -Repairing the deck, -General gardening, -Replacing the boundary fence along one side of the property.
- The tenant submits that none of the work was such that it could not have been reasonably undertaken with their remaining in occupation, and would, at most, have involved a temporary inconvenience. The tenant also points to the fact that the gardening, replacing the fence, and repairing the garage did not require entry into the premises.
- The landlord states that a property inspection in November 2022 had to be aborted following threatening and obstructive behaviour by the tenant. The landlord also states that a tradesperson engaged to undertake work had difficulty gaining access and that the tenants were generally unhelpful. The tenant denies the allegations of threatening and obstructive behaviour. Having heard from the parties, I am not satisfied that the events could necessarily be labelled as threatening or obstructive, and there is no evidence from the tradesperson concerned.
- I cannot accept that the tenant’s conduct was a valid reason for determining that the repairs could not be completed with them in occupation. After considering the evidence, I accept the tenant’s submission that the work planned, and completed was not extensive and did not require the tenant to vacate the property. The notice was invalid. Unlawful act
- Turning to whether the landlord had knowledge that they did not have grounds, while the Tribunal has determined, objectively, that the works did not meet the threshold, I am satisfied, by the thinnest of margins, that the landlord held an honest but mistaken belief that the works were extensive, and that it would be impractical to undertake them with the tenant remaining in occupation. Although the notice is invalid, I do not find that there has been an unlawful act.
- Regarding compensation, although the tenant gave notice, it was a result of having already been given notice by the landlord, notice which was invalid. The tenant is entitled to claim for loss that naturally flows from the breach. In this case the tenant states they had to take a day off work which resulted in lost wages of $250.00 and suffered the stress and inconvenience of finding alternate accommodation. In addition to the lost wages, I also award compensation of $500.00, for a total of $750.00. Costs
- As the tenants have substantially succeeded with the claim, I have reimbursed the filing fee. Name suppression
- The landlord seeks name suppression. The tenant does not.
- 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 my view neither party has been substantially successful and on that basis no orders for suppression are made.