What was Tenancy Tribunal case 4538749 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 4538749?

The reconciled net award was $20.44.

What type of tenancy dispute was case 4538749?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4538749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9072179-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4538749 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 4538749?

The reconciled net award was $20.44.

What type of tenancy dispute was case 4538749?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4538749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9072179-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4538749 — State of repair

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant and landlord’s name and identifying details.
It is declared that the landlord may annually spray Wet and Forget Rapid Application on the exterior of the property to maintain it after giving the tenant the required statutory notice to undertake maintenance work.
It is declared that it is the landlord’s responsibility to ensure that during the application of Wet and Forget Rapid Application the tenant’s plants are protected.
[The tenant/s] must pay [The landlord/s] $20.44 immediately being the filing fee.

Reasons

The application

The landlord seeks a declaration from the Tribunal as to (a) whether it may spray Wet and Forget Rapid Application annually on the exterior of the property to maintain it; and (b) who is responsible for the protection of the tenant’s plants when this work is done.
The tenant does not want the landlord to use this spray. Attendance, adjournment and representation
Prior to the hearing I declined to grant an adjournment that was requested by the tenant on the basis that she needed a morning hearing. This was because there was no evidence to support this request. The tenant was told that her request for a representative, which was made at the same time, would be heard at the hearing itself.
Prior to the hearing the tenant requested an adjournment again so that she could obtain evidence. I declined this further request. This application was initially made on 30 March 2023 and a mediation has taken place. The tenant has had ample opportunity to gather evidence. It is up to the parties to be ready for the hearing with their best evidence.
I asked the tenant at the start of the hearing if she wanted to make representations as to why she wanted a representative.
The tenant said the representative was no longer available and was also unwilling to share the information about why she needed the representative while the other party was in the room. I explained that the Tribunal cannot consider evidence that is to be kept private from the other party. The tenant remained unwilling to share this information. In the absence of an explanation there were no grounds upon which to grant a representative and in any event the representative was no longer available. The hearing continued with the tenant representing herself. She was able to actively take part in the hearing.
The property manager and one of the executors of the estate of the owner of the property as named on the tenancy agreement, who has since passed away, attended for the landlord.
The landlord also brought a witness. However, this evidence was of limited assistance. Facts
The property is a 1940s stucco building with a large section.
The landlord wants to use Wet and Forget Rapid Application on all exterior surfaces: the walls of the house, roof, shed, fences, the gate, outside porches, driveway, letterbox and clothesline.
The landlord provided evidence from the local Wet and Forget Store in the form of an email dated 19 May 2023 and a Hazardous Substances Data Sheet for Wet and Forget Rapid Application.
The email refers to the fact that Wet and Forget Rapid Application contains no acids, bleach, pesticides or weed killing agents. The email also sets out that the ingredients are a scientifically blended group of cleaning agents and surfactants designed to do a job.
The email sets out that the product is ‘not systemic that means that any run off ... that runs into a garden, lawn or soil will have no effect on the plants in the garden’.
The email also sets out that plants should not be sprayed directly and that plants should be sprayed with water to protect them before and after. It also sets out that another option is to cover the plants with plastic sheeting.
The Wet and Forget Rapid Application data safety sheet shows that the PH of the product is PH8. The email explains that tap water is neutral at PH7. The data sheet sets out the composition of the product. The email sets out that the factory and warehouse are New Zealand based and the data sheet supports this.
The landlord says the Wet and Forget email writer recommended to him that the spray be used annually. This can also be seen on the reverse of the Wet and Forget Rapid Application spray which sets out: “maintain simply by applying Rapid Application once a year or at first sign of contamination”.
The tenant is concerned about the use of this product. Her reasons are twofold. First, she says she is immunocompromised. She says that fumes like perfume or smoke make her weak. She says that she also has an issue with her skin. Second, she points to her garden. She is concerned about Wet and Forget Rapid Application and says it is a pesticide. She is concerned about the garden, the impact on the soil, plants and her pot plants. She says her garden means a lot to her and provided evidence that she has done work cleaning up the garden and planting flowers. She is concerned about damage to the environment.
The tenant provided a series of photographs showing the exterior of the property. She says the house does not need spraying. She says that there are also alternative bio-cleaners on the market. She says she has never needed to use a product like Wet and Forget on her homes in the past and the product is not needed. The tenant also provided a supporting letter from her son.
The landlord does not want to use a bio-cleaner. He says they do not work. He says he has used the Wet and Forget product for many years. He says the product is a preventative product as well as a remover. He wants to prevent growth as well as remove it and that is why there is no growth on the property now. The landlord says the property was last treated with Wet and Forget in December 2021. The landlord says he is happy to give the tenant plenty of notice about spraying the property.
During the course of the hearing it became apparent that there was also disagreement about, if the spraying was to go ahead, who would be responsible for the protection of the tenant’s plants (including those in pots) during any spraying. The parties sought a declaration from the Tribunal as who was responsible for the protection of the tenant’s plants if the spraying was to go ahead. Law
Under s 45(1)(b) of the Residential Tenancies Act 1945 (RTA) a landlord has an obligation to repair and maintain the premises. It provides: The landlord shall: 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

Analysis - Can the landlord use Wet and Forget Rapid Action?

I have carefully considered whether the landlord should be allowed to use Wet and Forget Rapid Application for maintenance and conclude on the basis of the evidence provided that it should.
I have reached this conclusion because I find that: a. the landlord has a statutory obligation to repair and maintain the premises; and b. what the landlord wants to do is consistent with its obligations in the RTA; and c. the landlord has the better evidence about the safety of the product it wants to use.
I find that there should be preventative maintenance by a landlord as well as repair. This is implicit in the requirement in s.45(1)(b) that the landlord provide and maintain (my underlining) the premises in a reasonable state of repair. The landlord wants to use Wet and Forget Rapid Application to discharge this statutory duty. From time-to-time landlords may need to use products with chemicals in order to meet that responsibility.
The landlord has established the product can be lawfully used in New Zealand. Wet and Forget Rapid Application can readily be purchased from [Retailers] by the public. I accept that it is a product which is lawful within New Zealand for use as the landlord intends – the landlord is entitled to use it.
While the tenant may have concerns about the product on the basis of the evidence her concerns are not proven. It is up to the tenant to bring all available evidence to the hearing.
On the basis of the evidence provided by the landlord I accept that the recommended maintenance schedule for the use of Wet and Forget Rapid Application is annual. Therefore, it is not unreasonable for the landlord to want to spray the property annually.
I therefore make a declaration that the landlord may annually spray Wet and Forget Rapid Application on the exterior of the property to maintain it after giving the tenant the required statutory notice to undertake maintenance work. Analysis - Who is responsible for the tenant’s plants during the landlord’s use of Wet and Forget Rapid Application?
I do accept that the Wet and Forget Rapid Application will impact on plants if there is splash back or direct application onto foliage. This is because that is expressly set out in the Wet and Forget email and also on the rear of the bottle.
When undertaking maintenance, a landlord must exercise due care. Part of this care will involve protecting the tenant’s possessions.
I therefore consider that it is the landlord’s responsibility to take all due care when carrying out this maintenance to protect the tenant’s plants.
I therefore make the declaration that it is the landlord’s responsibility to ensure that during the application of Wet and Forget Rapid Application the tenant’s plants are protected. Filing fee
The landlord has been wholly successful in its application and has obtained the declaration it sought in relation to the application of Wet and Forget Rapid Application.
I must therefore reimburse the landlord the filing fee (s 102, RTA). Name suppression
Both parties sought name suppression.
Under s 95A(1) RTA a suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings. I have awarded suppression to the landlord as it has been the substantially successful party.
I have considered if I should grant a name suppression order for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I have granted the tenant name suppression. This is not a typical application to come before the Tribunal and it is in the public interest for all of the parties to be able to come to the Tribunal to get clarity where there is a deadlock and there are ongoing concerns impacting upon the parties’ rights and responsibilities in a tenancy.

Tenancy Tribunal case 4538749 — State of repair

At a glance

Tenancy Tribunal case 4538749 — State of repair

At a glance

Award balance

Claims & awards

Order

Reasons

Analysis - Can the landlord use Wet and Forget Rapid Action?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Analysis - Can the landlord use Wet and Forget Rapid Action?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions