What was Tenancy Tribunal case 4541629 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4541629?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4541629?

The primary dispute was State of repair. Related themes: Smoke alarms, Healthy homes.

Where can I read the official tribunal order for case 4541629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9316602-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4541629 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4541629?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4541629?

The primary dispute was State of repair. Related themes: Smoke alarms, Healthy homes.

Where can I read the official tribunal order for case 4541629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9316602-Tenancy_Tribunal_Order.pdf.

42 Raumanuka Road, Naenae, Lower Hutt 5011 Tenancy Tribunal Case 4541629 — State of repair

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord must carry out the following work to the premises, which must be completed by 14 September 2023: a. Commission and obtain a report from a suitably qualified expert regarding the heat pump and heat pump compressor installed for Unit 40 Raumanuka Rd, (for which the compressor is currently located opposite the bedroom of the tenant’s premises) with the report to address the following matters (in 2b-2e below); b. Whether the heat pump and the compressor is in good working order and has been serviced in the last 12 months and, if not, the steps recommended to service, maintain or repair the heat pump and/or the compressor unit; c. Whether in the expert’s opinion, the heat pump compressor is emitting a noise that interferes with reasonable peace and comfort of the tenant when using the bedroom opposite between 10pm and 7am; d. Whether the heat pump compressor ought to be enclosed to mitigate noise; e. Whether the heat pump compressor can be relocated away from the area opposite the tenant’s bedroom, and whether it could be located on the wall of Unit 36 Raumanuka Rd opposite the tenant’s lounge window or some other suitable location, bearing in mind applicable New Zealand Standard 4121:2001 for accessibility; f. Any other recommendations; g. Provide a copy of the report to the tenant.
As an alternative to compliance with Order 2, the landlord must pay the tenant $250 immediately to enable the tenant to commission a report as set out in order 2 above.
If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $250. These costs may be set off against rent payable.
This matter is determined as indicated by the orders above, but the tenant is granted until 31 October 2023 within which, she can request that the application be brought back before the Tribunal, should the matter not be resolved and there is new evidence in respect of the heat pump (such as the above report) that she wishes the Tribunal to consider for the purpose of making further work orders. The matter will then be re-opened.

Reasons

Both parties attended the hearing with Ms Smith representing the landlord.
The premises are part of housing complex comprising of separate two-story blocks, containing an upstairs and ground floor apartment, and alleyways between each block that provide access to the back of the apartments. The tenant’s apartment is situated on the ground floor.
The tenant seeks a work order to relocate a heat pump compressor unit which services a neighbouring tenancy (apartment 40) because the compressor, which located in the alleyway opposite her bedroom within approximately 2 metres, is noisy with a constant humming sound. She says that the situation is exacerbated by the fact that the neighbouring tenant has a habit of running the heat pump 24 hours/day. She says the noise is constant and persistent, breaching her peace, comfort and privacy at night when trying to sleep.
The causes of the noise problem could be because the heat pump requires maintenance or repair; it could be because the compressor unit is not located in the correct position, or it could be a combination of both those issues. In addition, the problem is made worse because the heat pump is running constantly at night. The tenant wants the problem fixed. The Law
The landlord has several obligations relevant to the tenant’s complaint. Under section 45(1)(b) and (c) Residential Tenancies Act 1986 (RTA) the landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. However, the heat pump in question is not part of the tenant’s tenancy, so the landlord has no direct obligation to this tenant for the repair and maintenance of a heat pump belonging to another tenancy.
Under section 45(1)(e), the landlord must take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. However, the landlord cannot prohibit or curb the neighbouring tenant from using the heat pump all day to fix the problem and there can be no breach of s45(1)(e) in those circumstances.
This leaves s38(2) RTA which provides that the landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. I consider that a noisy heat pump which is in the landlord’s control and is affecting the quiet enjoyment of another tenant could amount to a breach if the resulting noise is interfering with the tenant’s reasonable peace and comfort in the use of the premises. In that situation, the landlord must fix the problem.
Where the Tribunal finds the landlord has failed to comply with their obligations, it may make an order for the landlord to carry out the work required to remedy the problem. See section 78(1)(e) RTA.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) RTA.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA. Discussion: Has the landlord failed to comply with their obligations?
The landlord made several arguments and submissions based on advice received from the landlord’s asset manager, who prepared a statement for the hearing, but was not present to give direct evidence and be questioned. Therefore, the asset manager’s evidence is of limited weight. The landlord’s arguments, the tenant’s response, and my findings follow.
The landlord’s assessment is that the electrical humming noise emitted by the compressor is reasonable background noise. However, the landlord (or its representatives/contractors) have not been present between 10pm and 7am to assess the impact of the heat pump noise when the tenant is trying to sleep. Certain noise levels that are reasonable during the daytime may be may less tolerable and reasonable at night. This is supported by the landlord’s own evidence of advice from MBIE that noise levels must not exceed 45 decibels in the daytime and must not exceed 35 decibels between the hours of 10pm and 7am.
The landlord says the tenant has the onus of proving that the heat pump compressor exceeds the permitted noise levels, and she has not done so. I adjourned the last hearing to enable the tenant to arrange for the local Noise Control Officer to attend and measure the noise, but they advised that they could not attend the premises to test noise from an electrical appliance. The tenant is therefore unable to obtain a reading and is not in a position financially to engage a suitable expert for that purpose. On reflection, I am not satisfied that the tenant must show that the noise exceeds a certain decibel level. Section 38 RTA requires an assessment of whether the noise interferes with the tenant’s reasonable peace and comfort. The RTA does not prescribe a certain decibel level. A persistent drone at night could be beyond reasonable even if it does not exceed a certain decibel level.
The landlord has not been able to access the neighbour’s heat pump to check it is in order. However, that is not the tenant’s problem and does not absolve the landlord from its duty. The unit should be serviced on an annual basis and the landlord has a duty to ensure it is maintained and is not noisier than it should be because of some lack of maintenance. The responsibility sits squarely with the landlord. If another tenant is obstructing the landlord from checking and servicing a heat pump, then the landlord can take steps to enforce their rights. There is no indication that they have done so here.
The landlord says that only Ms Bedford has complained. However, Ms Bedford provided a letter from another neighbour also complaining about the noise.
The landlord submits that the compressor unit cannot be relocated to the site suggested by the tenant (at the front end of the alleyway opposite her lounge window) because of rules regarding wheelchair access (this tenant uses a wheelchair). Ms Smith says that the asset manager said it simply could not be done. However, a detailed reason and explanation was not given.
The landlord says placement of the compressor unit was done in consultation with, and the agreement of, the tenant. That may be so, but she is not the expert and could not have foreseen the noise problem that has eventuated.
Online articles from Auckland Regional Council and BRANZ highlight how incorrectly installed heat pumps can cause sleep and amenity disturbance. Both articles warn that the main reason for noise complaints is because of the inappropriate location of a compressor close to and facing neighbouring bedrooms and living areas. In urban areas where there may not be enough space between residences for exterior heat pump units, a soundproof enclosure is suggested. Both articles also state that maintenance is important for good operation and ensuring the noise levels are as low as possible from rotating parts such as fans and motors. See the following links: https://www.buildmagazine.org.nz/index.php/articles/show/reducing-noise-from-heat- pumps https://www.aucklandcouncil.govt.nz/building-and-consents/building-renovation- projects/heat-your-home/Heat%20pump%20noise/heat-pumps-avoiding-noise- nuisances.pdf
After carefully considering all the evidence, I am satisfied that the tenant’s complaint is valid and likely the heat pump is emitting a noise which is interfering with her reasonable peace and comfort in the use of the premises. While it is hard to determine the solution, I find that the landlord is responsible to take further reasonable steps to investigate and, if possible, remedy the issue. For that reason, I am making a work order which requires the landlord to engage a suitably qualified expert to investigate and provide a report concerning the heat pump and what steps can be taken to prevent or mitigate the noise problem. I would expect that the landlord will act on any recommendations. If not, the tenant is given leave to ask for the matter to be reopened for further orders. K Stirling, 23 August 2023

Tenancy Tribunal case 4541629 — State of repair at 42 Raumanuka Road, Naenae, Lower Hutt 5011

At a glance

Claims & awards

Tenancy Tribunal case 4541629 — State of repair at 42 Raumanuka Road, Naenae, Lower Hutt 5011

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions