Published tribunal order
Tenancy Tribunal case 4550343 — Rent arrears
Decided 22 Dec 2023 · Published 22 Dec 2023 · Application 4550343
- Rent arrears
- State of repair
Party names are redacted in the official published order.
Order
- The Bond Centre is to release the bond of $1,080.00 to the tenant immediately
- [The landlord/s] must pay the tenant $1,054.24 immediately, calculated as shown in table below.
Reasons
- [The property manager/s] and [The landlord/s employee] appeared for the landlord. [The tenant/s] appeared. The tribunal also heard evidence from the tenant’s daughter [Redacted], and [Redacted], a friend of the tenant.
- The tenancy commenced on 16 October 2019 and was periodic. The landlord served a 90-day notice to end the tenancy on 19 April 2023. The landlord’s claim was filed on 14 April 2023. On 16 May 2023, the tenant filed a counterclaim.
- There was a Telephone Case Management Conference on 12 June 2023 to confirming the claims, compensation, and damages sought.
- The landlord’s claims are that (in brackets are details of the compensation sought): (i)The tenant owes rent arrears of $832.80, (ii)The tenant failed to leave the property in a reasonably clean and tidy condition and remove all rubbish, section 40(1) of the Residential Tenancies Act 1986 (The “Act”), ($320.00), (iii)The tenant has failed to return the lawns in a reasonably tidy condition, section 40(1) of the Act, ($70.00), (iv)The tenant is responsible for damage, section 49B of the Act: (a) To the vinyl flooring in the kitchen, ($568.00), (b) To walls in one of the bedrooms ($202.90), (c) To the toilet seat ($44.49), (d) To the kitchen window ($ 250.93)
- The tenant’s claims are that: (i)The landlord failed to maintain the property in a reasonable state of repair, section 45(1)(b) of the Act, namely: (a) The bathroom floor, (b) The taps in the shower, (c) The kitchen floor and the kitchen hot tap, (d) The toilet and toilet floor, (e) The windows in the lounge, kitchen and two of the bedrooms, (f) The door handles in one of the bedrooms, (ii)The landlord has failed to provide and maintain the guttering and drainage, section 45(1)(c) of the Act, and Reg 14 of the Housing Improvement Regulations 1947, (iii)The landlord has failed to provide a property free from mould, moisture, and dampness, section 45(1)(c) of the Act and Reg 15 of the Housing Improvement Regulations 1947, [ the result of leaking in the kitchen, bathroom and shower, and failure to provide and maintain guttering and drainage], (iv)The landlord has failed to provide and maintain working smoke alarms, section 45(1)(c) and the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, (v)The landlord has failed to provide an approved form of heating in the main living room, section 45(1) (c) of the Act, and Reg 6 of the Housing Improvement Regulations 1947, (vi)The rent exceeded the market rent by a substantial amount, section 25(1) of the Act, (vii)The notice to terminate the tenancy under section 51(2)(f) of the Act, issued on the grounds that the landlord intended carrying out extensive alterations, refurbishment , repairs or redevelopment, and that it would not be practical for the tenant to remain in occupation while the work was completed, was invalid as the landlord did not have grounds to issue the notice , and further that under section 60AA of the Act the landlord knew that they did not have lawful authority to terminate the tenancy. (viii)The landlord has interfered with the tenant’s reasonable peace, comfort, and privacy, section 38(2) of the Act.
- The tenant is seeking compensation and exemplary damages.
- The onus of proving these claims rests with each party. The standard required is on the balance of probabilities. Each party must establish more likely than not that the other has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
- In this case the Tribunal has heard from the tenant, and two witnesses who gave evidence for the tenant, the current property manager [The property manager/s] and a senior employee of the landlord, [The landlord/s employee]. The tenant also provided written submissions which they referred to. The landlord’s claims Rent arrears
- At the Case Management Conference, the landlord advised that they were seeking rent arrears to 26 April 2023. This claim has been amended and the landlord is now claiming rent arrears to the end of the tenancy on 19 April 2023. The tenant questions the amount believing that they paid in advance and therefore only owe one day’s rent. The tenant also states that they only accepted a rent increase for $270.00 to $300.00 per week on 17 November 2021 on the basis that the then property manager and the owner had given an undertaking that the property would be maintained properly, which the tenant states failed to occur.
- The tenant states that they had withheld increased payments for a period but had then started to pay the full amount due. Any monetary compensation awarded to the tenant should the Tribunal be satisfied that the landlord has failed in their obligations will be offset against any award made in favour of the landlord. A rent summary has been produced. The landlord states that the summary records all the rent payments received. After considering the evidence I am satisfied that the rent outstanding at the end of the tenancy was $832.80. Cleaning and rubbish removal
- The landlord claims that the tenant failed to leave the property in a reasonably clean condition and to remove all rubbish. The landlord is claiming $200.00 for cleaning and $120.00 for rubbish removal.
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii) -(v) Residential Tenancies Act 1986.
- The provision does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and inspection reports and photographs.
- The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
- The landlord has produced a pre tenancy inspection report which includes photographs dated 11 October 2019, and an end of tenancy report and photographs from 20 April 2023 and 28 April 2023.
- The tenant questions whether the property was provided in a reasonably clean and tidy condition, stating that some renovations had been carried out prior to their tenancy. This is not disputed. The tenant states that the landlord sought to delay the commencement of the tenancy on the basis that the property was not sufficiently clean. The tenant states that they could not delay the commencement and that they had cleaned the property themselves, while the owner had arranged for the windows to be cleaned inside and out. There was no further inspection completed after the cleaning.
- [The property manager/s] states that she took over as property manager in April 2022 and is unable to challenge the tenant’s assertion. Although [The landlord/s employee] states that this is not the landlord’s usual practice, she is unable to directly challenge the tenant’s assertion.
- The tenant questions the accuracy of the landlord’s evidence showing rubbish behind the toilet, claiming that the photograph had not been taken at the end of the tenancy. The tenant states that while they vacuumed the carpeted areas that they did not clean the vinyl floors in the kitchen, laundry, and bathroom as they had been advised that the entire floor was going to be removed. The tenant admits to overlooking a small amount of rubbish on the pantry floor but otherwise opposes the landlord’s claim. The tenant believes the property was left in a generally cleaner condition than it was at the start.
- The onus is on the landlord to prove that the tenant has failed to meet their obligations. The pre tenancy photographs indeed show some areas of the property that are unclean. It is also evident that builders’ tools are present. The photographs showing the state of the cleanliness at the end of the tenancy are not particularly clear. [The property manager/s] and [The landlord/s employee] are unable to rebut the tenant’s claim concerning the state of cleanliness of the property at the commencement of the tenancy. I accept the tenant’s submission that they did not clean the floor believing that it would be replaced before any new tenancy commenced.
- After hearing from the parties and considering the photographic evidence, I am not satisfied that the tenant has failed to leave the property any less clean than it was at the commencement. The claim is dismissed.
- The landlord claims that the tenant has failed to remove all rubbish. The tenant states that the previous occupants had left items of rubbish around the property, including in a shed and a lean-to. The pre tenancy checklist records “Garden shed ... various metal items left in shed.” The tenant states that there was also rubbish around the outside of the property and scattered in the garden. The tenant states the owner had removed some but not all this rubbish, leaving a pile close to a small sleep out, constructed during the tenancy, which also generated rubbish not removed. The tenant states that they had “helpers” and was confident that all the belongings and rubbish had been removed. However, on closer analysis of the photographs, the tenant’s confidence lessened, and they accepted that some of the items did, in fact, belong to the tenant including a plastic bucket, some children’s toys, a pool ladder, and a 44-gallon drum, which the helpers had burnt rubbish.
- After considering the evidence and hearing from the parties I am satisfied that the tenant has failed to remove all their rubbish. I award the landlord $60.00 for rubbish removal. Lawns
- The claim that the tenant failed to leave the lawns in a reasonably tidy condition is withdrawn.
Is the tenant responsible for the damage to the premises?
- To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B of the Act applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) of the Act.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) of the Act. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A) (a) of the Act.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B (1) of the Act.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- In awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful Vinyl flooring in the kitchen
- This claim is withdrawn. The condition of the flooring is the subject of one of the tenant’s claims. Walls in one of the bedrooms
- The landlord has produced a photograph of damage to the walls in a bedroom occupied during the tenancy by the tenant’s grandson. There are two small holes and a dent in one of the walls. The landlord has produced an inspection report showing the wall concerned taken at an inspection in January 2023. It appears that the damage was obscured by pictures on the wall, and the bed. The landlord is claiming $202.90 to repair the damage.
- There is no dispute that the damage occurred during the tenancy. The issue is whether it is more than fair wear and tear. The tenant states that the wall concerned was permanently damp and soft. The tenant stated that their grandson, who was 10 at the time, accidently caused the damage. The tenant argues had the wall not been structurally compromised that the damage would not have occurred.
- There is no documentary evidence of the tenant having raised this with the landlord. The tenant stated that they had raised the issue of dampness in the room verbally at almost every property inspection. [The property manager/s] states that at the inspection in January 2023, the tenant had mentioned that the wall in the room was cold, that she felt the wall, noting that it was cold but could not detect any dampness, nor was there any evidence of moisture or mould.
- None of the photographs produced by the tenant show excessive moisture or mould. During the inspection, the damage, which was hidden by the pictures, was not drawn to [The property manager/s] attention.
- On the evidence I am not satisfied that the wall was structurally compromised by moisture and dampness. The damage to the wall in my view has more likely than not been caused through carelessness. The landlord does not have insurance for damage. The amount claimed is reasonable and is to repair the damaged areas only. I make no deduction for betterment. The toilet seat,
- The landlord has produced a photograph of the toilet showing that the lid, not the seat, has been cracked. The tenant states that at the commencement of the tenancy, the owner had promised to replace the seat and lid but had not. From the pre tenancy photograph, it is not possible to determine the age or condition of the seat and lid. The tenant states that a disabled visitor accidently broke the seat while using the toilet. There is no suggestion that they were using the toilet otherwise than intended. The onus is on the landlord to establish that the damage was more than fair wear and tear. While I am satisfied the damage occurred during the tenancy, I am unable to rule out that it was fair wear and tear. The claim is dismissed. The kitchen windows
- The landlord has produced a photograph showing a cracked window in the kitchen. The tenant states they asked the owner to install security stays on the windows, which they attempted to do, but in the process of drilling into the aluminium joinery caused a stress fracture to the glass. The tenant’s explanation is consistent with the photographic evidence. I am not satisfied that the tenant is responsible for the damage and the claim is dismissed. The tenant’s claims
- The tenant claims that the landlord has failed to maintain the property in a reasonable condition.
- Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.
- The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.
- Breaching obligations under section 45(1) is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $7,200.00. See section 19(2) and Schedule 1A of the 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) of the Act.
- There is confusion on the part of the tenant as to the identity of the landlord. Throughout the tenant’s evidence they have referred to the owner of the property, and an associate, whom they believed to be joint landlords. The tenant claims that the owner and the associate were regular visitors to the property who promised to address raised maintenance issues but never did. [The property manager/s] states that the associate is a handyman. [The property manager/s] points out that the agreement clearly identified that the landlord was the property manager as agent for the owner. [The property manager/s] acknowledged that the owner and associate had not always relayed matters back to the landlord, which had led to miscommunication and misunderstanding. Bathroom / toilet and kitchen floor/ hot tap in kitchen
- The tenant claims that there was an issue with the floors in the bathroom, toilet and kitchen caused by successive leaks and floods resulting in excessive moisture and mould and causing the floor to become soft and “springy” and develop holes during the tenancy.
- No documentary evidence exists of the matter being raised with the property manager. The tenant stated that they kept a running diary recording all the issues and interactions with the landlord, but only produced some entries between January and November 2021, which they claim were entered at the material time, and didn’t think to bring the others along. The accuracy of this evidence is questioned. The tenant is unable to give specific dates as to when they raised the issue but state that it was at each inspection with the previous property manager and during visits to the property by the owner and the associate.
- [The property manager/s] stated that when she assumed the role of property manager and conducted an inspection on 10 January 2023, she noted that the floor in the bathroom was soft but that there was no hole apparent. The tenant accepted this and stated that the hole had in fact occurred at the end of the tenancy when [The tenant/s daughter] had put her foot through the floor. In the inspection report [The property manager/s] has noted “A lot of maintenance needs to be done to the property, especially for Healthy Homes Standards.” The Healthy Homes Standards came into effect for this tenancy on 01 July 2025. [The property manager/s] then proceeded to list outstanding maintenance, which included a comment about the kitchen “The area was the floor was replaced is spongy”
- [The property manager/s] states the landlord’s records show that on 10 November 2022, in response to a complaint about the bathroom floor, the landlord had arranged for a plumber to investigate. [The property manager/s] states that the plumber reported that they had fixed a leak in the kitchen but did not detect any other leaks at that time.
- [The property manager/s] however accepted that there had been ongoing issues with leaks which had likely resulted in damage to the floor. [The property manager/s] stated that since April 2022 she had personally arranged for a plumber to attend on at least four occasions. Prior to that [The property manager/s] was aware that leaks had been reported by the tenant and addressed on two earlier occasions in 2019. The pre tenancy photographs show that a section of floor in the kitchen had been patched. This does not appear to be disputed.
- After the inspection on 10 January 2023, [The property manager/s] stated after considering the ongoing issues with the plumbing and condition of the floor that the landlord recommended the floor and all the plumbing be replaced. The owner accepted the landlord’s recommendation. As the works were going to be significant, and it would not be practicable for the tenant to remain in occupation while conducted, the tenant was served with a 90-day notice.
- The tenant states that the plumber had told them that the leaks had been caused by faulty installation by the owner, pointing out that the incorrect type of sealant had been applied to the hot tap in the kitchen. The tenant states that following the end of the tenancy they also discovered that there had been another undetected leak in the kitchen which had likely been there for the entire tenancy.
- [The landlord/s employee] states that the root cause of the problem likely stemmed from the type of piping used, which was later found to have a manufacturing defect, making it susceptible to sudden failure. According to [The landlord/s employee] the landlord had experienced similar plumbing issues at other properties constructed around the same. [The landlord/s employee] stated that the continuous leaks had led to the floor becoming brittle and soft once it had dried out.
- The tenant called [The tenant/s daughter] to give evidence. [The tenant/s daughter] stated that she was the tenant’s daughter, and that she moved in the property approximately eight months after the start of the tenancy in 2019 and had remained until the end of the tenancy. She stated that she had only been present at two inspections, one with the previous property manager, and one with [The property manager], although she could not recall the date. [The tenant/s daughter] stated that she was there when the owner and the associate would regularly turn up unannounced. [The tenant/s daughter] added that she had not seen much of the owner and recalled the tenant raising concerns mostly with the owner’s associate, whom she believed at the time to be the joint landlord. [The tenant/s daughter] went on to state that she had not seen much of the owner, and it was mostly the associate. [The tenant/s daughter] stated that she had witnessed both the owner and the associate making promises to fix the floor, but nothing was done.
- [The tenant/s friend] gave evidence confirming a written statement provided on 17 October 2023. [The tenant/s friend] stated that she had been a friend of the tenant for 54 years and had been a regular visitor to the property over the tenancy. [The tenant/s friend] stated that she had been present when the tenant had raised concerns about the floor with the then property manager, the owner, and the owners associates but that months went by with nothing being done. [The tenant/s friend] stated that the tenant kept a diary.
- After hearing from the parties and considering the evidence, I am not prepared to find that it was solely due to faulty plumbing installation by the owner. I accept [The landlord/s employee’s] evidence that the pattern of leaks is consistent with there being an inherent defect with the pipes. I am satisfied that the landlord has responded appropriately to each incident that has been reported by the tenant. The leaks caused the floor to deteriorate. This I am satisfied this was an issue, that despite being raised by the tenant was not adequately addressed.
- In this case any compensation awarded must reflect the loss which the tenant has sustained because they did not get what they bargained for, or that they were entitled to under the Agreement or the Act, which in this case is a pool which complied with Council regulations. This is referred to as a loss of enjoyment or loss of amenity.
- Exemplary damages are designed to punish and to deter and are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must consider of the factors set out in section 109 of the Act. These factors are the intention of the person, the effect of the unlawful act, the interests of the party against whom the unlawful act was committed, and the public interest.
- I am satisfied that the landlord has failed to meet their obligations under section 45(1)(b). The breach has resulted in a loss of amenity. I award the tenant compensation of $500.00. I have considered the factors in section 109(3). I am not satisfied that an award of exemplary damages is justified. The taps in the shower,
- The tenant states that there was an unresolved issue with the taps in the shower, one of which was lose and would “disappear” into the wall. The tenant stated that they showed the associate of the owner, sometime in 2021, although cannot be sure of the date, and that they then raised it with the owner themselves, but nothing was done.
- [The property manager/s] states that during an inspection in October 2022 the tenant raised the issue, she tested the taps, and while noting that they were of two different types, and that one sat further into the wall than the other, that both appeared to function properly.
- The only photographs of the taps in the shower have been taken at a distance. The shower is of the type which is set over a shallow tub. The shower appears to have a mixer. The taps concerned provide water to the tub. I am unable to make an objective assessment as to the nature of any defect. There is insufficient evidence and the claim concerning the taps is dismissed. The windows in the lounge, kitchen and two of the bedrooms,
- The tenant states that they asked the owner to install security stays to the aluminium joinery so they could leave the windows open and ventilate the property. The tenant states that the owner initially agreed, although after attempting to install two stays, which damaged the windows, they ceased work and refused to continue.
- Section 46 of the Act provides that the landlord must maintain locks and other “similar devices” necessary to ensure that the property is reasonably secure. Each window had a working latch. The landlord in this case was not obliged to also install security stays in addition to the window latches. The claim is dismissed. The door handles in one of the bedrooms,
- The tenant states that the door handle to the room occupied by their grandson came off around December 2022, and they were then forced to open the door using a utensil. The tenant states they raised it with [The property manager/s], but nothing was done. [The property manager/s] states that the matter was first raised at the inspection in January 2023, not December 2022, but accepted that it was not addressed before the end of the tenancy. The landlord has failed to address the matter. On that basis they have failed to meet their obligations. I accept that the missing handle resulted in a loss of amenity. I award the tenant compensation of $150.00. Guttering
- The tenant states that the guttering was ineffective and overflowed for almost the entire tenancy. Despite raising this with the owner, the matter remained unresolved until April 2022 when the tenant reported it to [The property manager/s] who arranged for the owner to investigate. The tenant stated that water overflowed and ran down the outside wall of the room occupied by their grandson, which was the likely cause of the dampness and mould that had compromised the structural integrity of the wall. The tenant states that the owner investigated and found bottles and cans blocking some parts of the guttering, and that a section had been damaged.
- [The property manager/s] states that to her knowledge while the items were removed, there was no damage. There is no evidence of damage.
- The tenant states that the owner accused them of throwing bottles and cans on the roof, causing blockages. The tenant denied this, stating that the objects removed were weathered and appeared to have been there for some time. The tenant stated that an area of wall at the rear of the property had some green slime on it, and that the steps to the front door were slippery, requiring water blasting. This was accepted by [The property manager/s].
- Under section 45(1)(c) of the Act the landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises.
- Regulation 14 of the Housing Improvement Regulations 1947 require the landlord to maintain guttering and drainage in a reasonable condition.
- In my view the obligations under section 45(1)(c) of the Act requires a pro - active approach by the landlord. In this case a reasonably prudent landlord would have arranged for the regular inspection of guttering at least yearly.
- On the evidence, I am not satisfied that this was the case. I am satisfied that the landlord has breached their obligations under section 45(1)(c). I award the tenant compensation of $150.00. Mould and moisture
- The tenant claims the landlord has failed to provide a property free from mould, moisture, and dampness, section 45(1)(c) of the Act and Regulation 15 of the Housing Improvement Regulations 1947. This breach the tenant states is the result of continuous leaking in the kitchen, bathroom and shower, and a failure to provide and maintain guttering and drainage.
- The photographic evidence produced by the tenant in support of the claim is of a poor quality. From the photographic evidence it is not clear that the property suffered excessive moisture and dampness. None of the photographs show identifiable mould. Neither [The tenant/s daughter], who resided in the property since 2019, nor [The tenant/s friend], who claims to have been a regular visitor have offered any evidence on the matter. There is insufficient evidence. The claim is dismissed. Smoke alarms.
- The tenant claims that the landlord has failed to provide and maintain working smoke alarms.
- Under section 45(1)(c) and the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, the landlord must provide and maintain working smoke alarms.
- Breaching this regulation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $7,200.00. See section 19(2) and Schedule 1A of the Act.
- The smoke alarms at the property were in the hallway and kitchen. The alarm in the hallway is within three metres of the bedrooms, complying with the regulations. The tenant states that sometime in 2020, the alarm in the hallway started beeping, so they took it down and “hid it”. The tenant advised the owners associate purchased another one from “the two-dollar shop.” The tenant states that the associate damaged the alarm while replacing it. The tenant stated that when they asked if they would be provided with a smoke alarm the associate had “shrugged their shoulders, grinned, giggled, and then left.” The tenant states that despite raising it during at least 12 inspections over the 2020, 2021 and 2022 period, that the matter was not addressed.
- [The tenant/s daughter] stated that the property had never had a working smoke alarm. When questioned about this, [The tenant/s daughter] stated that she had recently lost a close family member and had grief related memory issues.
- [The property manager/s] first inspection as property manager was around May / June / July 2022. She cannot recall noting the presence of smoke alarms or the matter being raised. There is no inspection report produced for that first inspection. At the inspection on 10 January 2023, [The property manager] has recorded that the alarm in the hallway was missing. [The property manager] states that she assumed the tenant had removed it, which is true. [The property manager] states that they reported the matter to the owner but that it was not addressed before the end of the tenancy. [The property manager] was unsure, as property manager, why the landlord had not arranged for the matter to be addressed.
- I am satisfied that there has been a breach of the regulations. Upon discovering that the alarm was missing, the proper response by the landlord, despite any potential dispute as to who may have done so, would have been to replace it immediately. The tenant’s evidence concerning dates is not particularly dependable, and I am not satisfied that they raised it at “every” inspection. Nevertheless, for obvious health and safety reasons, compliance with the regulations is clearly in the interests of the parties and the public. I award exemplary damages of $600.00 Heating in main living room
- The property has a fire in the main living room. This is the primary source of heating and there is none other at the property. The tenant states at the commencement of the tenancy, the owner assured that the chimney had been cleaned and the fire was compliant. The tenant states that either after the first, second, or third winter, the tenant cannot be sure which one, they asked the owner if the chimney could be cleaned. The tenant states that the chimney cleaner advised that the fire was non-compliant and dangerous. The tenant advised the owner. It appears in this case the owner responded relatively quickly and asked the tenant to help choose a replacement fireplace.
- In the interim the owner said they would arrange for the associate to purchase an electric heater. The tenant states that the associate later arrived with an old oil heater which did not work. The tenant states that they usually dried clothes in front of the fire, and as they could no longer do so borrowed a clothes dryer which contributed to increased electricity costs. The tenant states despite the fire being “condemned” they were forced to use it over at least one winter period. The email correspondence between the tenant and property manager concerning the fire indicates that the landlord required council consent to install a new fireplace. It is unclear whether this contributed to any delay.
- A new fire was installed on 09 August 2022. [The property manager/s] states that the owner advised that they supplied a new electric heater and an oil heater, and that the tenant had no issues. The tenant states this is incorrect. The landlord does not have proof of purchase for either. [The property manager/s] states that there was no electric heater at the property at the end of the tenancy. The tenant states there was no electric heater because one was not provided.
- Section 45(1) (c) of the Act, and Reg 6 of the Housing Improvement Regulations 1947, state that landlord must provide and maintain an approved form of heating in the main living room.
- On the evidence, I am satisfied that the tenant was without a fire for at least one winter period. While a properly functioning oil heater and or an electric heater may be adequate, [The property manager/s] is not able to challenge the tenant’s assertion that the oil heater was insufficient, or that no electric heater was provided. I am satisfied that the landlord has breached their obligations. I award compensation of $250.00 for the loss of amenity over that one winter period. On the evidence and considering the matters set out in section 109(3), I am not satisfied that an award of exemplary damages is warranted. Market rent
- The tenant’s claim that the rent exceeded the market rent by a substantial amount under section 25(1) of the Act, is dismissed as there is no evidence produced. Termination for invalid grounds
- The tenant claims that the notice to terminate the tenancy under section 51(2)(f) of the Act, issued on the grounds that the landlord intended carrying out extensive alterations, refurbishment , repairs or redevelopment, and that it would not be practical for the tenant to remain in occupation while the work was completed, was invalid as the landlord did not have grounds to issue the notice , and further that under section 60AA of the Act the landlord knew that they did not have lawful authority to terminate the tenancy.
- There is no challenge to the notice on the basis that it was issued without grounds. The tenant accepts that the work involved replacing the floor and the plumbing is extensive, and there is no challenge to the landlord’s intention to carry out the work.
- The tenant claims to have been told by the owners associate that work would only take two weeks and they should be able to move back in once completed. There is however no obligation on the landlord to enter into a fresh agreement with the same tenant at the end of the tenancy, or upon the completion of any work.
- The tenant states that a landlord who has been found negligent causing the damage requiring repair is responsible for “re housing” the tenant until repairs are completed and cannot simply end the tenancy. The tenant states that shoddy DIY plumbing by the owner has caused the damage, and that, over and above any liability for failing to maintain the property, the landlord is responsible for finding the tenant alternate accommodation.
- The section of the law relied on by the tenant does not appear to be contained in the Act. The tenant has provided a copy of the law they rely on. The law relates to a foreign jurisdiction. The claim under this head is dismissed. Interference with reasonable peace comfort and privacy.
- The tenant claims the landlord has interfered with their reasonable peace, comfort, and privacy.
- The tenant states that around December 2019 they had a discussion with the owner about moving a cabin into the back yard. The owner stated that he preferred building a small sleepout instead. The tenant states that there were no plans produced and no start date, although the owner advised that it would take around three weeks to complete. The tenant states foundations were laid around the end of February 2020. This was followed by a few months of nothing happening. The tenant states that work then began around April / May 2020.
- The tenant states that over the next 10 months the owner, the owners associate, and several “local undesirables and alcoholics” would turn up without warning to work on the sleepout. The tenant states that to their knowledge none were “proper” builders.
- The tenant states that despite asking for advance warning of when someone would be at the property that none was ever given. The tenant stated that this was inconvenient as they had a small dog who may escape. The tenant states that whoever turned up would usually do so around 10am – noon and only stayed for a few hours. The tenant states that the workers damaged a glass house, trampled the vegetable garden, removed the clothesline, which was not reinstated for four months, used corrugated iron sheets belonging to the tenant to cover building materials, and used the tenant’s electricity to run power tools. The tenant recounted instances where they had been partially clothed and surprised by unannounced visits by the owner, the associate, and others.
- [The tenant/s daughter] stated that after the end of the tenancy, she had been briefly employed as one of the associate’s care givers. [The tenant/s daughter] stated that the associate had confided that they felt the owner had been negligent concerning his handling of the tenancy. The relationship between the owner and the associate appears to have soured. There is however no direct evidence from the associate. I treat this evidence with caution as to its reliability.
- [The tenant/s daughter] stated that the workers would turn up unannounced and at irregular times. [The tenant/s daughter] states that on several occasions she had caught people peering in the windows. [The tenant/s daughter] states that on one occasion she had caught an alcoholic worker looking through the bathroom window at her, and that the worker had then disclosed that they had previously observed her getting out of the shower.
- [The tenant/s daughter] stated that although worked ceased after 10 months, the sleep out was never fully completed. [The tenant/s daughter] acknowledged that there was very little documentary evidence of the tenant raising any of these matters with the owner or the landlord at the material time. In fact, there is none produced. [The tenant/s daughter] stated that the tenant kept a diary but cannot account for the missing diaries for 2019, 2020, 2022, and 2023, stating they must be in storage.
- [The tenant/s friend] stated that she stayed with the tenant at various times during the construction of the sleepout and that the tenant’s electricity was used. [The tenant/s friend] also states that while at the property she witnessed the owner and the associate regularly turn up unannounced. [The tenant/s friend], like the tenant, recounted an incident where they had also been partially clothed and surprised by the owner.
- Section 38(1) of the Act provides that the tenant shall be entitled to quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title of the landlord.
- Section 38(2) of the Act states that a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
- In the case of Smith v Floris, Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated, “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents”.
- The question as to whether a tenant’s reasonable peace, comfort or privacy has been significantly impacted by the actions of the landlord will often arise in situations where the landlord undertakes remedial work or renovation on the tenant’s property or a property nearby.
- In Lucas v Paterson [2005] DCR 76, the District Court has held that where landlords were renovating the property, tenants were required to put up with a degree of noise and general nuisance. In this case the landlord undertook renovations on the exterior of the tenant’s apartment block. The tenant had prior knowledge of the renovations, which involved the replacement of windows in each apartment with scaffolding temporarily obstructing the windows. The Court considered there was insufficient evidence to conclude the renovations had necessarily interfered with the reasonable peace, comfort, and privacy of the tenant.
- The Court stated at [36]: Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.
- Another case following Lucas v Patterson, in which the alleged interference concerned construction work or renovations is Marino & Ors v Wellington City Council DC, Wellington, CIV-2013-085- 660, 23 September 2013. In this case the alleged breach concerned noise generated during renovations on the exterior of a neighbouring apartment block managed by the landlord. The Court considered that whether there had been an interference with the reasonable peace of the tenant required an objective assessment of the nature and significance of the interference in the particular circumstances. In this case the appellants entered the apartments in full, or at least substantial knowledge, of the construction noise. The Court considered that in doing so the tenant had effectively waived their right to complain about the interference. The Court also considered that of relevance was the fact that of the one hundred residents, who could have complained about the interference, only five had done so.
- In Lucas v Paterson and in Marino v Wellington City Council (DC), it was considered relevant in determining what was “reasonable” that the tenants had prior knowledge of the renovations before they entered the tenancy. The reasonable expectations of the tenant may therefore be said to be a factor in determining what amounts to a reasonable interference.
- In Verney v Team Group Rentals [2021] NZTT 4296277 the Tribunal at [56] stated: It is well established that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort, and privacy if they are not well managed.
- Each case will be determined on the facts proven and require an objective assessment as to whether the nuisance or intrusion impacting the quality of the tenancy is over and above that which a tenant could be reasonably expected to endure in the circumstances.
- [The property manager/s] states she cannot comment on the incidents concerning the construction of the sleepout as she had only assumed the role of property manager after the work had ended. [The property manager/s] stated that the landlord had no record of any of these issues being raised. However, I find that the landlord had actual knowledge of the construction. The owner is aware of these proceedings but has not been called by the landlord to attend and provide their version of events. [The property manager/s] states that the owner accepted that they had used the tenant’s electricity but denied that it had taken 10 months to complete the work.
- In my view a reasonably prudent landlord would have ensured that a proper schedule of works was established and discussed with the tenant in advance. Workman turning up without warning was not satisfactory. In my view, the landlord has failed to provide a proper oversight of what the owner was doing and how they were conducting the work. Ultimately it was the landlord’s responsibility to provide such oversight and ensure that the conduct of the work did not interfere with the reasonable peace, comfort, and privacy of the tenant. Based on the evidence, I am satisfied that the landlord has failed to meet that obligation, and that this has resulted in nuisance or intrusion over and above that which a tenant could be reasonably expected to endure in the circumstances.
- I award the tenant $500.00 for loss of amenity. Costs
- Both parties seek reimbursement of their respective filing fees. Arguably both have at least been partly successful triggering the Tribunals discretion to order reimbursement of the filing fee. However, as reimbursing the filing fee to one would effectively cancel reimbursement to the other, and vice versa, I make no order for reimbursement. Name suppression
- Both parties seek name suppression.
- 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.
- While neither party has been wholly successful, standing back and considering the matters before the Tribunal, overall, I consider that both have been substantially successful either bringing or defending the claims made. On that basis I order suppression of both party’s names and the address of the property.