Published tribunal order
Tenancy Tribunal case 4515293 — Rent arrears at 94 Paihia Road, One Tree Hill, Auckland 1061
Decided 24 Nov 2023 · Published 24 Nov 2023 · Application 4515293
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants names and identifying details.
- Hedgman Real Estate Limited must pay [The tenant/s] $1,852.58 immediately, calculated as shown in table below:
- The Bond Centre is to pay the bond of $3,800.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- The parties entered into a tenancy agreement to commence on 18 February 2022. The landlord is recorded as ‘Hedgman Property Management’, and [The tenant/s]. DescriptionLandlordTenant Rent arrears$1,017.86 Compensation $2,850.00 Filing fee reimbursement $20.44 Total award$1,017.86$2,870.44 Net award $1,852.58 Bond $3,800.00 Total payable by Landlord to Tenant $1,852.58
- As I will discuss further below, there are irregularities in the tenancy agreement as to the term of the tenancy.
- The weekly rental for the premises was $950.00.
- The tenancy ended on 17 February 2023 following notice from the tenant.
- Both the tenants and landlord have filed claims in the Tenancy Tribunal that I will now address.
TENANTS CLAIMS
- The application filed by the tenant is only for compensation, as it relates to a range of defects with the premises. I will set those out shortly. But in doing so I will consider whether there has been a breach of an obligation from the landlord, and consider globally whether compensation should be paid, and the level of that compensation. Storm water
- The tenant states that soon after moving in he found that there were issues with storm water. [Tenant 1] advised he is a plumber, so ran a CCTV camera down the drain, and found it was blocked. The tenant states that there was an outside bar that had been illegally connected to the stormwater system, but when that was used it overflowed. The blockage caused fly problems. This blockage was notified to the landlord on 7 May. The tenant states that over the duration of the tenancy the stormwater had not been cleared.
- The landlord produced a letter from [Plumbing company] dated 10 March 2023, which reported that the storm water drains are soak pits, which is common in that area. The author advised that the drain was working adequately.
- The landlord’s position is that there is no further work to be done to the drain, that it is working effectively.
- [Tenant 1] disputed that was the case. [Tenant 1] showed a video he took after the assessments / work described by the landlord. That shows a non- rainy day, where water was discharged into the storm water drain from the bar sink (from the tap). I accept the volume of water discharging into the drain was modest, which soon overflowed. [Tenant 1] showed that this then ran down the side of the house. Analysis
- There is no dispute between the parties, that there was a blockage in the drain. However the landlord’s position is that the blockage was not to the extent that work was needed in order to unblock, or construct a new soakage pit. The tenant disagrees that is the case.
- The landlord relies on the letter from [Plumbing company] which states: ...Currently it is working to a sufficient standard. With heavy rain, these would not cope with the flow to absorption rate and you would find water will overflow out of the pipes and along the ground and to the road front. This is not affecting the property in terms of flooding due to its land lay out.
- I do not accept the [Plumbing company] plumber’s opinion. At the hearing the tenant showed a video, which depicted water running into the stormwater drain, from the tap in the bar. After a short period of time, the drain overflowed. I have no difficulty in accepting that the volume of water that would have been coming through the pipe from the sink, would not have been significant, and less then would be anticipated from even a moderate rainfall. To that extent, I am not persuaded that the drain did not require maintenance.
- Furthermore, I do not accept the opinion from [Plumbing company] that any water leakage was not problematic. The tenant again provided photographic evidence at the hearing, which showed the water running along the side of the house. The landlord is required to meet the requirements in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS), which includes obligations around drainage as follows: 27 Tenancy building to have efficient drainage system (1) The tenancy building must have a drainage system that efficiently drains storm water, surface water, and ground water to an appropriate outfall. (2) The drainage system must include appropriate gutters, downpipes, and drains for the removal of water from the roof.
- I do not accept that the drainage for this premises would meet that standard.
- I find that the landlord has breached its obligations in relation to maintenance and the HHS. Mould / absence of moisture barrier or underfloor insulation
- The tenant’s position is that there was a mould problem inside the house including on joinery and windows and walls. The tenant provided photographs of the mould supporting the extent of mould in the premises. The tenant describes the house as damp, which he considers would arise from there being no moisture barrier or underfloor insulation.
- The tenant states that the entire underfloor area was accessible, and in parts there was standing room. The tenant notes that no healthy homes or insulation statement was attached to the tenancy agreement.
- The landlord states that the insulation was up to standard, but she accepts there was no vapour barrier. Analysis
- Again the HHS has requirements that the landlord must meet around underfloor insulation and a moisture barrier. The landlord accepts there is no moisture barrier or underfloor insulation.
- In relation to underfloor insulation, clause 15 of the HHS holds: 15 Underfloor insulation for suspended floors (1) If a domestic living space in the premises has a suspended floor, that floor must be fully covered by qualifying underfloor insulation. (2) However, the floor is not required to be fully covered so far as— (a) another domestic living space (whether or not part of the premises) is immediately below the floor; or (b) clearances are reasonably required around any other item that is installed in or under the floor.
- These premises were required to have qualifying insulation installed.
- The evidence is that the subfloor area was accessible over the entire dwelling, so insulation and a moisture barrier could be fitted by the landlord. The landlord has failed to comply with its obligations to provide insulation.
- The HHS also requires the premises to have a ground moisture barrier. That is found in clause 18 of the HHS, and the landlord accepts that this barrier is not present. Again the landlord has breached its obligations as it relates to failure to have a ground moisture barrier.
- The tenant’s position is that the premises were damp and mouldy. On balance, I accept that the landlord would at least be liable in part for mould arising inside the premises, because I accept the premises would have been damper then they should have been, given the above-mentioned breach-that is a failure to provide underfloor installation, and ground moisture barrier is, which are recognised as being means to reduce moisture inside the dwelling, and making the premises warmer and safer to live for tenants. Facilities being unavailable
- The tenant states that there was a substantial outside bar area which opened with gas struts, and also had a pizza oven. During the tenancy the gas struts stopped working, and when a service man attended, he pulled it open damaging the doors so they could not be opened. The pizza oven would leak. The tenant states this was advised to the landlord 11 December 2022.
- The landlord agrees that she was notified about the issues on 11 December 2022. The gutters were cleared, and a worker contracted to attend the gas struts. The landlord accepts that the pizza oven would leak. The landlords position is that they got these problems referred to a contractor (other than the pizza oven) efficiently.
- The tenant states that the gas struts were not fixed, the gas strut technician advised they were dangerous and that they should not be used, and the pizza oven could have been recoated to stop leaks.
- The landlord disputes that the tenant had been told that the gas struts were dangerous. The tenant states that he had the conversation by text message, but was told on the telephone it was dangerous. Analysis
- In short, the tenants rent premises that have certain features, and they are entitled to have the benefit of those features during the course of the tenancy. That is not to say that any facilities provided by the landlord will work continuously without interruption, but what is expected is that when facilities require maintenance, that the maintenance is undertaken without delay, in order to allow the tenants enjoyment of the facilities that they pay money for.
- In this case, I accept there were material difficulties with the pizza oven leaking, and the gas struts to the bar not working, which limited the benefit the tenants could derive from the property. The landlord has not persuaded me that these items were repaired or maintained efficiently. I find the landlord has breached its obligations around maintenance for these items. Smoke alarm
- The tenant states that there was a problem with the smoke alarm where it went off randomly. The landlord was advised of the issue on 22 October 2022, but the alarm was not fixed until January. The tenant states that the entire unit was replaced.
- The landlord states that on 24 October the landlord replied to the tenant to ask if it was still a problem, and if it was the landlord would get it replaced, but did not hear further about it. The landlord produced a letter from the electrician. Analysis
- Smoke alarms are a vital safety requirement in residential premises. The absence of working smoke alarms, costs lives. In this case the tenants raised with the landlord that the smoke alarm is not working, and at that point the obligation shifted to the landlord to have the smoke alarm assessed, or replaced, in very short order. While I accept that the landlord did go back to the tenant to check if the alarm was still failing, I am not persuaded that is a defence to this claim. The tenant had put the landlord and notice that the smoke alarm is not functioning properly, the landlord should have seen that through to be sure the smoke alarm was working adequately. Again I consider that a breach of the landlords maintenance obligation. Fly infestation
- The tenant states that there was a considerable fly infestation at the premises. The tenant believed this to arise from the blocked drains. The tenant showed a video of the flies in the bar and inside kitchen area. The tenant states they operated automatic fly spray dispensers.
- The landlord considers that they had done what was reasonable to have maintained the premises to avoid flies, and that any further issues with flies would sit with the tenant. Analysis
- At the hearing the tenant showed a video of flies inside the exterior bar, and also inside the premises in the kitchen area. In my assessment, the number of flies seen were well beyond what would be accepted as normal. The landlord has not identified any other source of the fly infestation, and the tenant’s belief that the blocked drains account for some of the problem, makes sense. In the absence of evidence to the contrary, I accept that the fly infestation would arise from a breach on the part of the landlord. Compensation
- As I have found above, there are a range of breaches of obligations that the landlord had to the tenants. Again the tenants have only claimed compensation in relation to these breaches, and compensation normally stems from a loss in relation to the breach. Again the tenants were renting premises and should have received the full benefit of what they were renting, and to that extent, have sustained a loss. The tenants have also sustained losses in relation to the time needing to address the various defects, and I accept that there has been some additional expenditure for the tenants, such as installing automatic fly spray dispensers.
- When I step back and consider what the losses would likely be, I consider that compensation of three weeks rental would be reasonable, taking also into account the period of time over which the breaches have occurred. I therefore award the tenants compensation of $2,850.00.
LANDLORDS CLAIMS
- The landlord has presented two claims, one relating to rent compensation, the other arrears. Rent compensation
- The landlord’s position is that after the tenants gave notice, they did not allow viewings of the tenancy, which delayed the landlord getting replacement tenants into the premises. The landlord states that once the premises had been vacated, they had a showing shortly thereafter, but all of the prospective tenants needed to give four weeks’ notice to their existing landlords. To that extent, it was four weeks that the tenancy was empty until the new tenancy started, and it is that four weeks that the landlord seeks compensation for.
- The tenant states that on 11 December 2022 they requested to end the tenancy on 31 January 2023. The landlords responded that they could not end the tenancy before the end of the one year. At the hearing the tenant read an email from the landlord on 12 December confirming the tenancy could not end until after the full year period was over (ie 17 February 2023).
- The tenant states that on 11 January there was a request for a viewing, but that was not suitable given they had family staying. While the tenant states that the landlord did ask that he contact the landlord with other dates, he accepts he did not reply, but noted there were later communications by phone. The tenant further states that his partner was pregnant, and given the effect of hyperemesis, it was not suitable to have viewings.
- The landlord produced notices at the hearing for viewings, but the tenant reported that he did not receive those notices. At the hearing the tenant reviewed his emails, and could not find evidence of receiving those notices. Analysis
- As I have noted above, there is an irregularity with the tenancy agreement. On page 2 of the tenancy agreement, the document records: Type of tenancy agreement This is a periodic tenancy and may be ended by either party giving notice as required under the Residential Tenancies Act 1986. The tenancy will start on 18/02/2022. Note: Tenants ending a periodic tenancy must give at least 28 days' written notice (no reason required). From 11 February 2021 landlords are no longer able to end a periodic tenancy without cause (without a reason) by providing 90 days' written notice. To end the tenancy the landlord must give written notice using one of the reasons listed in the Residential Tenancies Act 1986 for terminating a periodic tenancy.
- A plain reading of that clause, is that the tenancy is a periodic tenancy. However, the landlord referred to further special clauses found on page 8 as follows: The tenancy term has a minimum of 1 year and then is a periodic tenancy
- A tenancy cannot be a periodic, and a fixed term tenancy at the same time. The default will always be that the tenancy is a periodic tenancy, unless the parties expressly contract for a fixed term tenancy otherwise.
- Section 11 of the Residential Tenancies Act 1986 (RTA) applies, and that confirms that where there is a clause in the agreement that is not consistent with the RTA, then that clause is of no effect (if the detriment would be to the tenant): 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly per‐ mitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
- In short, if the tenancy is a periodic tenancy, then the tenant is able to give 28 days notice to end the tenancy, and the landlord cannot restrict the tenant to a minimum term before notice could be given. Therefore, the special clause in the tenancy agreement can be of no effect.
- In this case, the tenant endeavoured to terminate the tenancy on 11 December 2022 by giving notice, and by law, the tenant could have given 28 days notice to in the tenancy at that time. The landlord wrongly required the tenant to remain in the premises until the one year period was ended. Because of the actions of the landlord, in requiring the tenant to stay in the premises for a minimum of one year, which the landlord was not able to do, it would not be reasonable to order compensation for the rent losses as the landlord claims here.
- However even if I were wrong in that assessment, I would have concluded the reasons presented by the tenant for not agreeing to viewings would have been reasonable. Rent arrears
- Following discussion at the hearing both parties agreed the rent arrears owing at the end of the tenancy is $1,017.86. That amount is ordered to be paid by the tenants by consent. Filing fee
- Because the tenants have been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.