Published tribunal order
Tenancy Tribunal case 4538790 — Tenancy dispute at 91 Sylvan Avenue, Northcote, Auckland 0627
Decided 22 Sept 2023 · Published 22 Sept 2023 · Application 4538790
- Boarding House
- Exemplary damages
- Healthy homes
- Mould & damp
- Property damage
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 Tenant’s name and identifying details.
- The Tribunal declares that this is a standard residential tenancy under the Residential Tenancies Act 1986. It is not a boarding house tenancy.
- By consent, the parties agree that this tenancy is now a periodic tenancy.
- Sawsan Rizkallah and Said Zaki Saad may not charge the tenants for power usage unless and until there is a sub-meter that can accurately measure their usage of power.
- Sawsan Rizkallah and Said Zaki Saad must pay [The tenant/s] $465.44 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. The landlords were assisted by an Arabic interpreter. DescriptionLandlordTenant Rent abatement $445.00 Filing fee reimbursement $20.44 Total award $465.44 Bond $1,760.00 Total payable by Landlord to Tenant $465.44
- The tenant has filed a claim seeking reduction of a fixed term tenancy, work orders for carpet replacement, rent abatement due to flooding damage, and further says that the landlord has failed to lodge the bond and has not supplied them with information regarding the Healthy Homes Standards (“HHS”), insulation or insurance.
- The landlord has filed a cross-application seeking compensation for damage to a bedside table and exemplary damages for the tenants’ anti-social behaviour.
- I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
- This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
- As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
- I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
- For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.
Is this a residential tenancy?
- Before I can consider the substantive claims by the parties, a preliminary issue needs to be determined. That is whether this is a boarding house tenancy, a house-sharing arrangement, or a residential tenancy.
- The landlord appears to have received contradictory advice from various sources. I must therefore make a finding regarding this issue at the outset. Factual Background
- The parties are largely in agreement as to the layout and arrangement of the premises. I was also able to sight the advertisements referred to by the parties.
- What was advertised, and what both parties described, was a self-contained unit. This unit or granny flat is underneath the main house which is occupied by the landlords.
- The granny flat comprises 2 bedrooms, a bathroom, a kitchenette and lounge. There is also separate parking and a separate backyard area for the granny flat.
- There is a separate entrance to the granny flat.
- There is an internal staircase which leads from the granny flat to the upper levels of the house, however this has been blocked off for the time being.
- Both parties agreed that they lived independently and there was no sharing of facilities. Each party had exclusive access to their own area. The tenants did not have the right to enter into the upstairs part of the house, and the landlords did not have the right to enter the granny flat without permission.
- The landlords occupy the middle level of the property. Originally, it was just the two of them, however more recently they have had close friends (a couple with two children) stay as well. Their friends occupy the top storey bedrooms but they essentially co-habit and share cooking facilities etc.
- When looked at as an entire building, there are 6 or more bedrooms. The landlord says this is what led her to receiving advice that she was operating a boarding house.
- Consequently, she had the tenants sign a standard boarding house tenancy agreement. However, it appears that apart from that form, the tenancy has not operated as a “boarding house” in any real sense. Analysis
- Section 4 of the Residential Tenancies Act 1986 (“the Act”) provides that “this Act applies to every tenancy for residential purposes except as specifically provided.”
- The exceptions to the Act are contained in section 5. Relevantly, section 5(1)(n) of the Act provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
- In the Act, “premises” is defined as follows: premises includes (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies)— (a) any part of any premises; and (b) any land and appurtenances, other than facilities; and (c) any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land
- Residential premises is defined in the Act as follows: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful
- The definition of a boarding house is found in section 66B of the Residential Tenancies Act 1986 (“the Act”).
- In that section, a boarding house is defined as: boarding house means residential premises— a. containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and b. occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time
- In this case, the arrangement clearly falls outside the definition of a boarding house. The tenants rented the entire self-contained granny flat. They did not rent a room and the right to use communal facilities.
- Similarly, this is not a house sharing arrangement. The landlord is not living in the same “premises” as the tenant. The tenants rent a self-contained area of the property. They are a separate household unit and pay rent for exclusive use of their separate unit.
- Accordingly, I find this is a standard residential tenancy. Tenant Claims Reduction of Fixed Term
- There is no such thing as a fixed term boarding house tenancy. However, as noted above, something of this nature was signed by the parties.
- Boarding house tenancies can be terminated by notice of between 48 hours up to 28 days depending on the situation.
- However, I have found that this is not a boarding house tenancy. It is a standard residential tenancy.
- During the hearing, after discussions, the parties agreed that this is therefore a periodic tenancy. That means that the tenants can give 28 days’ notice to terminate the tenancy. The landlords can also give notice to terminate but only if there is a genuine reason as outlined in section 51 of the Act.
- It also transpired during the hearing that the landlords have no objection to the tenants giving notice and vacating the premises sooner than that.
- Therefore, the application to reduce the fixed term is moot. Work Orders
- During the hearing, the tenants sought work orders to replace the carpet that had been damaged during the flooding in January and February 2023.
- There was no dispute that the flooding had affected the tenants and meant that the carpet in the granny flat needed to be removed as a result.
- Nor was there any dispute that the landlords were awaiting an insurance payout before undertaking more permanent fixes of the items that were damaged in the flood.
- As it transpired, the tenants indicated that they were actively looking for alternative accommodation.
- The work orders in that case would be moot and so I decline to make any work orders. Power and Water Bills
- It was agreed between the parties that the utilities would be split between the landlord and the tenants.
- The tenants said that they originally agreed to paying half but then when more people moved in upstairs, they felt this was unfair because there were more people using power and water upstairs.
- As I explained during the hearing, Section 39(3) of the Act provides that tenants are responsible only for outgoings that are exclusively attributable to their occupation of the premises or use of the facilities.
- Landlords are responsible for outgoings that are incurred whether or not the premises are occupied.
- For practical purposes, what that means is that unless the landlord has a way of measuring the tenant’s usage, they may not charge for power and water used by the tenants.
- Nor can the landlord charge the tenants for the fixed costs related to power and water (such as the daily fixed charges).
- However, because it was not possible to quantify how much was paid at the hearing, I will leave it to the parties to work out how much should be reimbursed to the tenants for utilities. Bond, Healthy Homes, Insulation and Insurance Information
- The tenants claim that the landlord failed to lodge their bond within the required period.
- They also claim that the landlord failed to provide Healthy Homes Standards (“HHS”), Insulation and Insurance information with the Tenancy Agreement.
- In relation to the bond, the landlord accepted that she did not lodge the bond until 7 March 2023. I have sighted a receipt which confirms it has now been lodged.
- The landlord says that she simply forgot, and that when the tenants reminded her, she lodged it straight away.
- In relation to the other information (HHS, insurance, insulation) the landlord says that because she believed this was a boarding house tenancy, she did not understand that those things were required to be provided to the tenants.
- Section 19 of the Act requires that a landlord lodge a bond with the Bond Centre within 23 working days after payment is made.
- Failure to do so is an unlawful act for which exemplary damages may be awarded up to a maximum of $1500.00.
- Section 13A provides that a landlord must include in the tenancy agreement information relating to insurance, compliance with the insulation regulations and compliance with HHS.
- Failure to do so is an unlawful act.
- In this case, I find that the landlord did fail to provide the necessary information; however, in this case that omission was inadvertent and based on the landlord’s genuine, albeit mistaken, belief as to the nature of the tenancy. In addition, there was no real detriment to the tenants and so I decline to make any award in relation to this.
- Failure to lodge the bond however is another matter.
- Failure to lodge a bond is generally considered to be very serious. The bond system is there for a reason. A bond is prima facie a tenant’s money and is not to be used by a landlord for general cash flow purposes. The bond system ensures that a landlord cannot act as their own judge and jury regarding potential claims on the bond.
- Failure to lodge a bond undermines the integrity of the bond system which provides security for both tenants and landlords.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act.
- In this case, I am satisfied that the landlord has committed an unlawful act in failing to lodge the bond in the required timeframe.
- 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) of the Act.
- However, in this case, I am not satisfied that this failure was intentional; I accept the landlord’s evidence that it was a genuine oversight on her part.
- For that reason, I decline to award exemplary damages for failure to lodge the bond. I do warn the landlord that she must be very careful in future. Rent Abatement
- The tenants seek abatement of rent for the period following the flooding and cyclone related damage.
- I have sighted photographs and video footage of the flooding and accept that this was a significant event for the tenants, with a lot of water entering the premises.
- The tenants said that after the flooding things were difficult. The house smelled, all the carpet had to be lifted, there was damp that took a long time to dry out, it was cold, and they also lost personal belongings during the flood.
- The tenants said they asked for a rent abatement due to this.
- The landlord said that they did not agree to any rent abatement because the tenants had already had the benefit of paying a lower rent than what the landlords originally wanted.
- The landlord also said that at the beginning of the tenancy they had agreed to waive two weeks of rent on the basis that the tenants would agree to a fixed term.
- The landlord also said that the house had been white-stickered by the Council and so there was no basis for any rent abatement.
- Section 59(1) of the Act provides recourse where, otherwise than as a result of a breach of the tenancy agreement, the premises are destroyed, or are so seriously damaged as to be uninhabitable.
- In those cases, the Act provides that the rent shall abate accordingly, and either party may give notice to the other terminating the tenancy.
- Premises includes “part of any premises”.
- In this case, clearly the issues with the premises were not caused by any breach of the tenancy agreement. Rather, it was an “act of God” due to a significant rainfall event and then a cyclone. This caused damage in many parts of Auckland.
- The question of the Council stickering the premises is somewhat irrelevant in deciding whether the section applies.
- The stickering process is part of the Council’s rapid safety assessment process, which is an initial safety check only. Usually, the assessment relates to the structural integrity of the building or surrounding land and whether there is a significant risk to health or life. The Council itself quite clearly states that “the building may have suffered little or no damage and can be used. However, it doesn’t necessarily mean the building is safe, there could be unseen damage.” 1
- The stickering process is quite clearly not an assessment of the general habitability of buildings.
- In this case, there is no doubt that the premises were inundated with significant amounts of water. The photographic and video evidence makes that quite clear.
- The tenants’ evidence, which I accept, is that the stench of water and dampness was overwhelming. It took a long time to dry out and as at the date of hearing the landlord had only implemented temporary fixes in terms of the flooring.
- In this case, I find that the damage was sufficient to make the premises partially uninhabitable and therefore a reasonable landlord would have offered some rent abatement. This is particularly so when the landlord had been unable to remedy the issues promptly because of delays in insurance processing.
- Whether or not the landlords wanted more rent, the reality is they agreed to rent to the tenants at the price that had been advertised - $440 per week. Similarly, for whatever reason the landlords had agreed to waive some rent initially.
- This does not mean that there was no need to consider rent abatement after a natural disaster.
- I therefore order the landlords to a pay $445 to the tenants for the period 1 February to 6 July 2023. This amounts to approximately $20 per week for the period.
- This reflects that while part of the premises was destroyed, the tenants still received the benefit of a home and most of the premises were usable and habitable. 1 Auckland Council, Advice for Aucklanders issued February 2023, found at https:// www.aucklandemergencymanagement.org.nz Landlord Claims Anti-Social Behaviour
- The landlord seeks exemplary damages against the tenant for anti-social behaviour.
- In particular, the landlord says that the anti-social behaviour in question occurred when the parties were having a disagreement in relation to the tenancy.
- She said that the tenants were talking between themselves in their own language which she found to be rude and offensive because she could not understand what they were saying.
- The landlord was clearly relying on the common definition of the word “anti- social” as meaning contrary to customs in a society, rude, offensive or unacceptable.
- However, as I explained to the landlord, “anti-social behaviour” has a specific definition under the Act and while I accept that she may have been offended by the tenants, talking in one’s own language does not amount to anti-social behaviour under the Residential Tenancies Act.
- This claim must therefore be dismissed. Compensation - Damage
- The landlord sought compensation for damage to a bedside table that had been provided to the tenants.
- The landlord said that it was brand new at the start of the tenancy and provided photographs showing that it was now mouldy and ruined.
- The tenants said that the reason it was mouldy and ruined was because it was damaged in the flood.
- The landlord said that although they accepted this item did get wet in the flooding, it was the tenant’s failure to put it out in the sun for long enough is what led to it being damaged.
- The tenants say they did do their best to dry it out, along with all the other items that were wet during the flooding.
- In this case, the damage to the bedside table was not caused by any careless or intentional act on the part of the tenants. Clearly, it was caused by the flooding.
- In this case, there is insufficient evidence to satisfy me that any act or omission by the tenants has been the cause of the damage. Rather, this was yet another item that was damaged by an “act of God”.
- This claim is therefore dismissed. Suppression and Filing Fee
- 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 this case, the tenants have substantially succeeded in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of their names and identifying details.
- Because the tenants have substantially succeeded, I also reimburse the filing fee.
- Finally, I sincerely apologise for the delay in issuing this decision. J R Smith 29 August 2023