Published tribunal order
Tenancy Tribunal case 4518370 — State of repair
Decided 27 Feb 2024 · Published 27 Feb 2024 · Application 4518370
- State of repair
Party names are redacted in the official published order.
Order
- The Bond Centre is to pay the bond of $1,814.29 ([Bond number suppressed]) to [The tenant/s] immediately.
- The lanldord must pay the tenants $5,865.88 immediately, calculated as shown in table below.
Reasons
- Both parties attended the full day hearing at North Shore District Court on 23 February 2024.
- A request had been made for [tenants name suppressed] to be assisted by an Arabic interpreter. The interpreter got his days mixed up, thought he was booked for 28 February 2024 and did not present himself at the hearing. When called he was in Manukau and could have taken up to an hour to reach [event location suppressed] in what was still peak traffic time. Waiting for the interpreter was going to cause significant further delays to starting the hearing of three applications. Mr Taher waived his right to an interpreter, stated that his English was good enough for him to be able to present his claims and his defence to the landlord’s claim and that he had attended the first hearing without an interpreter.
- [Tenant name suppressed] is an internationally acclaimed journalist, whose English did not pose any difficulties for her in supporting her husband to prove his claims and defend the landlord’s claim for rent arrears.
- The landlord applied for rent arrears, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy on 15 September 2023.
- The tenant made two separate cross applications and sought compensation and exemplary damages for failure to maintain/repair, failing to respond to written requests for maintenance, failing to provide locks, unlawful entry, the issuing of a retaliatory and/or unlawful termination notice, breach of the tenants quiet enjoyment and privacy, continuing to provide premises that the landlord knew were contaminated and breaches of the healthy home standards, particularly the moisture and drainage standard. He also sought reimbursement for the two sets of filing fees he has paid.
- Applications 4518370 and 4507777 were heard on 19 June 2023 by Adjudicator Northwood. The landlord was granted a rehearing on 23 June 2023, as it had failed to appear at the substantive hearing because it had forgotten about the hearing and its application was dismissed.
- The third application 4675330 was filed by the tenant on 4 September 2023, following further issues between the parties leading to the end of the tenancy. Background
- This is a two storey, 4-bedroom home. Two bedrooms, lounge and bathroom are downstairs and two bedrooms, lounge, kitchen, and bathroom upstairs.
- The rental for the premises was $850.00 per week.
- The tenants are a husband and wife and their two children. The tenancy commenced on 1 October 2022.
- On 17 November 2022, the tenants advised the landlord of some maintenance issues that they would like to have attended too. These issues were a toilet leak, leaking tap in laundry, broken and excessively noisy wooden stairs that were cracked on the side, no blinds on the sky light windows in the lounge and master bedroom, broken window latch and wooden doors that would not close properly. The landlord attended to the toilet issue and curtain in the lounge within one month of the start of the tenancy but did not fix the broken hinge on the aluminium window until late July 2023 and had not fixed the other issues raised at the end of the nearly one-year tenancy.
- The tenants also asked the landlord to remove garden waste left on the property by the previous tenants. This was never attended to by the landlord.
- This email was followed up with another email from the tenant on 22 and the 24 of November 2022 asking for a response to the email they sent on 17 November 2022.
- On 27 January 2023, the property was seriously damaged in the Auckland floods.
- The tenants provided video footage of the extent of the flooding on 27 January 2023 with the water up to shin height in areas of the downstairs.
- The video showed extensive flooding to the storage room, two bedrooms, bathroom, hall, and lounge.
- The tenants advised the landlord immediately.
- The tenants emailed the landlord on 5 February expressing their distress at living in the property where half of it was uninhabitable due to wet carpets. They demanded that the carpet be uplifted to prevent any more damage to the house and their possessions. The tenants advised that the wife was suffering as she has a serious health problem, and her breathing was being affected by the conditions they were living in. The tenants stated that they would pay half the rental price from 27 January 2023 until the issues are sorted.
- The landlord replied two weeks later, on 20 February 2023, to say the owner is now talking to the insurance company and they have “suggested” lifting the carpets as soon as possible. Furthermore, that the rent reduction is $650 per week and not $425.00.
- The landlord made a comment in this email that she was applying for an urgent Tribunal hearing to sort out this dispute as the tenants don’t care about the constant damage caused by the wet carpet.
- The tenant has repeatedly asked the landlord to uplift the carpets from the day of the floods. The tenants complained by email on 29 January 2023, 1 February 2023, 2 February 2023 and 7 February 2023 that the carpets must be uplifted and replaced.
- The landlord responded to the tenants 29 January 2023 email on 30 January 2023 informing them that she will send around a carpet cleaner to clean and dry the carpet. The carpet was cleaned on 30 January 2023 and again on 2 February and after these treatments the landlord advised the tenants that the carpet was still wet but better than before.
- The property was flooded two more times in a month.
- The landlord was not aware at the time of the floods that there was an issue with a gap that ran around the basement of the house. Subsequently these gaps were fixed and there were no more flooding issues.
- After one storm on 13 February which caused more flooding, the landlord asked the tenants if the carpet was still wet and said they might send people around to remove it. The carpet was finally lifted on 22 February 2023, 4 weeks after the first flood.
How much is owed for rent?
- The tenancy ended on 15 September 2023. At that time, the rent summary provided to the Tribunal showed the tenants owed $1,585.71 in rent arrears.
- The tenants had not paid the rent for the last three weeks of the tenancy as they were unsure how much, if any they owed because the rehearing was required to assess whether the rent reductions applied by the landlord were fair and reasonable and whether any further rent reduction may be awarded by the Tribunal.
- The landlord provided the tenant 50% rent reduction for 4 weeks from 28 January 2023 to 24 February 2023 ($425.00 per week), post the first flood.
- The landlord provided a 23.5% rent reduction for 14.75 weeks from 26 February 2023 to 9 June 2023 ($650.00 per week), as it was a further 14.75 weeks before renovations could start. The landlord says the commencement of the work was delayed by a week as the tenants had to move their wet and contaminated furnishings from the flooded bottom level of the house. They had used one half of the two-car garaging space to store their belongings from the downstairs storage area and were reluctant to leave their other luxury car outside of the garage for fear it may be stolen or damaged. In addition, the furnishings were soddened with contaminated flood water and they did not want to take that contamination into the area with their other stored belongings.
- The landlord provided the tenant 50% rent reduction for 4.25 weeks from 10 June 2023 to 7 July 2023 ($425.00 per week), when the renovation work commenced until it was completed.
- I find that during the entire period, from 28 January 2023 to 7 July 2023, that half the house and half the garaging space was uninhabitable the tenants should have received a 50% reduction in their rent. The landlord argued that the tenants agreed to the 23.5% rent reduction. They produced evidence of that agreement. The evidence shows the tenants had unsuccessfully tried to negotiate a 50% rent reduction for this period, but the landlord had refused and informed them that it would give a rent reduction of $200.00 per week for that period.
- Post the 19 June 2023 hearing the landlord made the decision to apply a 50% rent reduction for the two periods outlined in paragraphs 33 and 35 above.
- I award the tenants a further rent reduction of 26.5% ($225 per week) for the period 26 February 2023 to 9 June 2023 being a total of $3,310.71 for the stress, inconvenience caused to the tenants from the loss of the use of half the house and half the garage space for that period.
- With the rent reduction awarded, the tenants were never really in rent arrears. The tenants are owed rent overpayment of $1,725.00. Breaches of s45 of the RTA
- [The tenants] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (“RTA”).
- Under section 45, a landlord must: a. provide the premises in a reasonable state of cleanliness (s45(1)(a) RTA); b. provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes (s45(1)(b) RTA); c. comply with the healthy homes standards (s45(1)(bb); d. comply with any relevant enactment in relation to buildings, health and safety (s45(1)(c); e. Only continue to provide premises to the tenant, where the landlord knows that tests carried out in accordance with prescribed methods have established that the premises are contaminated, if the landlord has decontaminated the premises in accordance with a relevant prescribed decontamination process and any rules prescribed under s138C(3)(f) of the RTA ss45(1AA) and (1AAB)(b) of the RTA;. .
- 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 Residential Tenancies Act 1986. A. Failure to repair and maintain
- The landlord’s obligation of repair is not absolute. It does not have to foresee a latent and unobservable defect before it causes damage.
- The tenant has an obligation to notify the landlord, as soon as possible after discovery of any damage to the premises and the need for repair.
- A landlord must then carry out repairs within a reasonable timeframe after knowledge of the need for repair.
- The Wellington District Court in Collins v Professionals Hutt City Ltd 1 , held that “the landlord has an obligation to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, 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 may be”.
- The tenants claim that from the commencement of the tenancy there have been issues with the property, such as leaks in the toilet and laundry, cracked and noisy floorboards, no curtains or blind installed in the bedroom or lounge for the skylight and issues with the hinge on an aluminium window. The property also had significant garden waste left from the previous tenants and a bathroom door would not close.
- After the Auckland floods the property was seriously damaged. The tenants begged the landlord to lift the carpets immediately. The landlord did not have the carpets lifted for 4 weeks. The damage to the property had been exacerbated by the delay and the tenants had been left living in a damp, mouldy environment with carpets that omitted a pungent odour. They were also required to air the house out all the time to try and dry it out and used dehumidifiers and the air conditioning unit to try to take some of the dampness out of the air as no commercial fans were available to the landlord at that time.
- A landlord has a responsibility to maintain the property, including damage caused by floods. The landlord must get repairs done in a timely manner, having regard to the gravity of the situation and any mitigating circumstances.
- The landlord has breached s45(1)(b) by failing to provide a premises in a reasonable state of repair, by initially renting the property with issues that they were slow to remedy and then failed to undertake repairs in a reasonable timeframe after the floods when the tenants were left to reside in a wet, damp and mouldy house for four weeks when it was open to the landlord to lift the wet carpets within a few days of the floods.
- I accept that landlords were told that they needed to obtain an insurance company assessment before remedies and claims could be made. However, the landlord took minimum steps to assist the tenants. Photographs and videos of the soaked carpet and underlay could have been taken before and after it was lifted, within days of the second flood. These photographs and videos could have been used in conjunction with the photographs and videos the tenants took during the floods to provide to the insurance assessor when he/she/they came. As it 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2010 at [15]. transpired an insurance assessor never visited the property prior to the carpets being lifted.
- The tenant could only use half of the property and the rest was soaked. The tenants sought that the carpets be uplifted to dry the property out. The landlord refused to allow this to happen until 4 weeks after the flood.
- The result of the delay was the gib had to be removed from the garage and downstairs level of the house, black mould developed in the wooden frame, walls, and curtains. The carpets were unsalvageable, and the property was very damp, smelly and caused the tenants’ ill health. The tenants provided a health report from [tenant name suppressed] doctor that showed she had suffered bad asthma and other breathing difficulties from living in damp and mouldy conditions for weeks as well as suffering emotional harm from being left to live in uninhabitable conditions.
- The landlord solution to the soaked house was to demand that the windows and doors were left open to air the property out. The landlord did send around a carpet cleaner twice to shampoo and try to suck as much water as possible out of the carpets, but the problem required immediate uplifting and drying out of the carpet and underlay.
- I also find that the landlord failed to remove the pile of garden waste, left by previous tenants, for the duration of the tenants’ tenancy. This resulted in the tenants loss of the use of that part of the garden and caused them issues when they mowed the lawns and left an unsightly blight on the landscape.
- I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. the landlord knew the previous tenants had left an unsightly pile of garden waste and did not remove it for the duration of the tenancy of nearly 1 year and failed to remedy other reasonable repair and maintenance issues raised by the tenants in a timely manner, if at all; b. the tenants have suffered stress, inconvenience, and loss of amenities/use of part of the premises as a result of the landlord’s failure to repair and maintain the premises; and c. it is in the interests of the tenant to receive exemplary damages for the stress, inconvenience, and loss of amenities/use of part of the premises; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their legal obligations to the tenant to provide and maintain the premises in a reasonable state of repair.
- I make an order for the landlord to pay $2,600.00 in exemplary damages for its breach of s45(1)(b) of the RTA. accordingly.
- In addition, s15 of the Housing Improvements Regulations 1947 states “every house shall be free from dampness”. The landlord also failed to meet its obligations to provide the premises free from dampness. I award $1,000.00 of general damages to the tenants for the landlord’s failure to maintain the premises and provide the premises free from dampness for four weeks when it could have had the wet contaminated carpet and underlay promptly lifted after the floods and removed.
- The landlord could have issued a notice to the tenants to vacate the premises while the house was in an uninhabitable state or offered them full rent relief while they took up temporary accommodation until the house was inhabitable again, albeit not fully renovated. B. Failure to provide premises in reasonable state of cleanliness
- I do not consider that the landlord breached s45(1)(a) in that the issues caused by the flood were failure to maintain and not failure to provide the premises in a reasonable state of cleanliness. I dismiss this claim for lack of evidence to support it. But for the flooding issues the premises were provided in a in a reasonable state of cleanliness. C. Breach of healthy homes standards
- [The tenants] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] also considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
- The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
- The HHS does provide exemptions in specific circumstances.
- Prior to the floods, which were caused by extreme severe weather events, the landlord gave evidence that the premises had never been damp or flooded prior to 27 January 2023.
- The landlord, based on a healthy homes report dated 13 September 2022, acted under the reasonable belief that the premises complied with the healthy homes standards at the time it rented the premises to the tenants.
- The tenancy agreement signed by the tenants supports the landlord’s reasonable belief at that time that the premises met the healthy homes standards, including the moisture ingress and drainage standard.
- After the floods, the landlord became aware that lower level of the premises, particularly the storage area did not have sufficient drainage and had gaps around the base of the house that led to the flooding. After these issues were fixed, the house remained dry and free from dampness and flooding. The healthy homes standards do not require a landlord to foresee a latent and unobservable defect before it causes damage. Once the moisture ingress and drainage issues came to its attention, it took reasonable steps to have the required repairs and maintenance carried out to ensure the house was returned to healthy homes compliance standards.
- I do not find that the landlord intentionally failed to ensure the premises met and continued to meet the healthy homes standards. This claim fails for lack of evidence and dismissed. The landlord’s failure to maintain and repair after the flood was the appropriate claim for the tenant to pursue and it has been successful in that claim. Failure to respond to written requests for maintenance.
- [The tenants] claim the landlord failed to respond to their written requests for maintenance and in doing so breached its obligations pursuant to section 42B(3) of the RTA.
- Section 42B of the RTA contains provisions for the tenant to make a request to make minor changes to the premises and requires the landlord not to unreasonably withhold consent for such minor changes, such as putting up a picture or shelf or the like.
- Section 42B(3) confirms “A landlord commits an unlawful act if the landlord withholds consent for a minor change”. The tenants have taken this to mean that the landlord must respond to their written requests for maintenance. This is not the purpose of this provision.
- The tenants did not provide evidence during the hearing of having made a request to make minor changes to the premises themselves and had those requests unreasonably denied. This claim is dismissed accordingly for lack of evidence to support it. Unlawful entry
- Section 48 of the RTA contains provisions in relation to the landlord’s right of entry.
- The tenants claims the landlord has entered the premises without consent or notice and in breach of s48 of the RTA.
- .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) Residential Tenancies Act 1986.
- Breaching this obligation 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 Residential Tenancies Act 1986.
- The landlord alleged the property manager, [landlord name suppressed], unlawfully entered the premises on Saturday 28 January 2023 when she came to assess the damage to the carpets, and more generally the damage to lower level of the house from the first flood. He stated that she only gave him one hour’s notice that she was coming and then when she arrived, she knocked on the door while the tenants were sleeping and she went around the back of the premises and tried to enter the sliding door in the lower level of the house without his permission. At this time she also took photographs of the outside of the premises. The door was locked so she was not able to enter until the tenants came downstairs and let her in. A text message from the tenants dated 28 January 2023 shows that the tenants agreed to [landlord name supressed] coming to the property that day to investigate the extent of the damage so she could send some photographs to the owner and discuss with the owner any remedial work required.
- Section 48(7) confirms that a property manager can enter the land without seeking authorisation from the tenants but not enter the premises without the tenants’ consent or with the requisite notice. [Landlord name supressed] had the tenants’ permission to come and investigate the flood damage that day, she was let into the house by the tenants, and she did not require the tenants’ consent to enter the backyard.
- The tenants claim [landlord name supressed] came with the carpet cleaner on 30 January 2023 and unlawfully entered the premises via the sliding door of the downstairs level of the house without the tenants’ knowledge or permission. The text messages between the parties that day suggest Ms Ren was not with the carpet cleaner and that the tenants let the carpet cleaner in. There is no evidence to support an unlawful entry claim on this day.
- On 2 February 2023, [landlord name supressed] did accompany the carpet cleaner for his second visit to the premises. There had been a second flood of the downstairs on 30 January 2023. The evidence provided showed that the tenants were not happy about this visit and had told [landlord name supressed] “take care of the carpet...no cleaning or drying... and fix the water leaking and all other things mentioned in my email”. The previous visit from the carpet cleaner had shown the tenants that shampooing and sucking some water out of the carpet, when it has been in 5 to 10cm of water, did nothing to remove all of the contaminated water from the carpet and underlay and did not dry the carpet and underlay out at all. [Landlord name supressed] and the cleaner came around, and knocked at the door despite the tenants protest. When the tenants did not immediately answer the door, they claim [landlord name supressed] took the carpet cleaner around the back of the property and were entering the sliding door when the male tenant came downstairs and starting yelling at them for entering without him letting them in and for not being patient enough to wait for him to answer the door when he and his family had been up the past few nights due to the recent floods. The evidence also proves that [landlord name supressed] gave the tenants less than the 24 hours’ notice s48(2)(d) requires her to give the tenants to carry out repairs/remedial work such as carpet cleaning. There is no evidence that suggests [landlord name supressed] or the carpet cleaner were given consent freely by the tenants to enter the property. [Landlord name supressed] denies entering the property and says she waited outside while the carpet cleaner entered the premises through the ranch slider. She did not deny that the tenant had not given his consent for the carpet cleaner to enter the premises nor that she had not given the required 24 hours’ notice. She stated that she wanted to get the carpet cleaned as soon as possible after the second flood as the flood water was unclean and the carpet cleaner was there from 5:45pm to 6:22pm when the tenant had been notified, he was coming around 12:00pm.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages to a maximum of $1,500.00 where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- I find the landlord has committed an unlawful act intentionally on 2 February 2023. The carpet cleaner was acting on the instructions of the landlord and had the landlord’s agent with him when he unlawfully entered the premises and that the landlord did not provide the tenants with the required notice.
- I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. the landlord knew the tenants did not consent to the carpet cleaner coming to clean and dry the carpets on 2 February 2023 and had expressly stated that in a series of text message. The landlord’s agent also knew she had not provided the required 24 hours’ notice to the tenants and she was with the carpet cleaner when he unlawfully entered the premises on her instructions and she knew the tenant was very unhappy to find the carpet cleaner downstairs without having let him in; b. the tenants have suffered stress and inconvenience of waiting for nearly six hours to see if a carpet cleaner they had expressly stated they did not want to turn up as indicted in the property manager’s text and then to find that the carpet cleaner had entered the premises without consent nearly 6 hours after the tenants had been told he was coming with an inference that he was going to come whether they agreed or not. They also experienced a breach of their privacy; c. it is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and breach of privacy caused ; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their right of entry obligations.
- I make an order for the landlord to pay $500.00 in exemplary damages for its breach of s48(2) (d) of the RTA. accordingly.
- The tenants also claimed that [landlord name supressed] entered the premises unlawfully when around the end of June 2023, she accompanied the tradesmen and the owner to inspect the remedial work being undertaken as the tenants had made complaints about the standard of the work.
- The tenants accepted they had given permission for the other property manager, [landlord name supressed], the tradesmen and the owners to enter the premises, but not [landlord name supressed]. The tenants’ relationship with [landlord name supressed] and broken down and they had been communicating primarily with [landlord name supressed]. The landlord gave evidence that [landlord name supressed] is new to property management so he was acting under [landlord name supressed] supervision and [landlord name supressed] was the more appropriate agent to accompany the owners that day. The tenants do not get to chose the agent the owners decide to accompany them nor do they get to chose the agent the owner decided to engage to manage that property. As such, [landlord name supressed] had a lawful right to enter the premises with the owners and tradespeople that day. Failure to provide locks on the bathroom and toilet doors
- [The tenants] claims the landlord has failed to provide locks on the bathroom and toilet doors which has encroached on their privacy and security.
- The tenants raised their concerns about the toilet door not shutting properly at the beginning of their tenancy. When the landlord came to fix the toilet door around 1 month after the tenancy commenced, the tenants asked for locks on the toilet and bathroom door. The landlord did not provide these locks.
- Section 46(1) of the RTA confirms “the landlord shall provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure”.
- The landlord is under no legal obligation to provide locks or other similar devices for internal doors, such as toilets and bathrooms. Section 46(1) requires a landlord to ensure that the premises have external locks that enable tenants to ensure the premises are reasonably secure.
- This claim is dismissed for lack of evidence of the statutory breach claimed. Breach of privacy/quiet enjoyment
- [The tenants] claims the landlord has harassed them and breached their privacy and quiet enjoyment when the landlord entered the premises and backyard without the tenants consent on 30 January 2023, 2 February 2023 and around 30 June 2023.
- 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) Residential Tenancies Act 1986.
- 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.
- I have dealt with these claims under the unlawful entry head of claim and do not consider it appropriate to award two amounts of exemplary damages for the same acts by the landlord. There was no other evidence provided that supports the claim that the landlord intentionally breached the tenants’ privacy or quiet enjoyment of the property. I therefore dismiss this claim. Retaliatory and/or unlawful notice
- On 10 August 2023, the landlord gave the tenant a 63-day notice informing the tenants that it did not intend to renew the fixed term tenancy and it would be ending the tenancy just after the expiry of the fixed term, being 14 October 2023, because the owners family members intended to move into the premises. The tenant claims the notice is retaliatory as when they first took on the tenancy the discussions were around this being renewed as the tenants were looking for a long term lease of at least 10 years.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
- The tenants have proven that there were significant issues between them and the property managers, but not between them and the owners. The property managers lost the client when the property went back to the owners family, so there was no incentive for them to retaliate in the way alleged by the tenants.
- The tenants have failed to prove that the notice was retaliatory. The owners family did move into the premises after the tenants left on 15 September 2023 and moved out at the end of the summer when they found more suitable accommodation for their needs.
- The landlord gave 63 days’ notice to give the tenants more time to find suitable accommodation, as their fixed term tenancy was due to expire on 29 September 2023. Because the 14 October 2023 termination date was after the 29 September 2023, the tenancy would have become periodic. So the landlord gave the 63 days notice required to end a periodic tenancy, pursuant to s51(1)(a) of the RTA, but gave it during the fixed term tenancy. This confused the tenants.
- In this notice, the tenants were also given the option of terminating the tenancy earlier if they wished by the giving of 21- or 28-days’ notice. The tenants issued a 21 day notice and ended the fixed term tenancy earlier, on 15 September 2023, without penalty.
- The tenants have also claimed that the notice was unlawful pursuant to s60AA of the RTA. This section of the RTA states “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application”. There was no evidence provided by the tenant that proved this claim. The landlord only ever sought to terminate the tenancy at the end of the fixed term period and only because the owners needed the premises for their family to use as their principal place of residence within 90 days after the termination date.
- The tenants claims in relation to the notice terminating their tenancy have not been made out and are dismissed. Knowingly providing contaminated premises
- [The tenants] claims that the landlord provided premises that have been tested and found to be contaminated, and which have not been decontaminated.
- Where premises have been tested and found to be contaminated with methamphetamine, or any other prescribed contaminant, the landlord cannot provide the premises to a tenant until they have been decontaminated. Where the premises have already been provided, the landlord may only continue to provide them if the premises are being decontaminated. See sections 45(1AA) and (1AAB) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 45(1AB) and Schedule 1A RTA.
- The flood water was dirty and may have contained some contaminants from the ground outside but was not required by law to be tested for the types of contaminants envisaged by this provision of the RTA. It is highly unlikely the flood damaged carpets and walls would have contained any of the prescribed contaminants that this section of the RTA covers, such as methamphetamine or asbestos. I find there is no evidence to support the tenants claims that the premises were or should have been tested and found to be contaminated with methamphetamine, or any other prescribed contaminant that would result in the landlord not being allowed to provide the premises to the tenants until they have been decontaminated. This claim is closely linked to the tenants’ failure to maintain claims I already traversed in paragraphs 41 to 59 above. I have awarded exemplary and general damages for these breaches.
- In addition, the tenants have provided email evidence that proves the landlord gave them the option to break their lease early and move out due to the flood damage and the tenants made the decision to stay while the remedial work/repairs were carried out. Had they been so concerned about being exposed to potentially harmful contaminants, they would have taken the landlord’s offer to move.
- In addition, the carpet cleaning undertaken after each flood was the landlord’s attempt to clean away any contaminated water and leave the carpet at least clean even if it was still wet. Reimbursement of filing fee
- Because [the tenants] have substantially succeeded with the claim I have reimbursed the two filing fees they have paid for their applications 4675330 and 4518370.