What was Tenancy Tribunal case 4554290 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 4554290?

The reconciled net award was $3,614.29.

What type of tenancy dispute was case 4554290?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4554290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9435158-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4554290 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 4554290?

The reconciled net award was $3,614.29.

What type of tenancy dispute was case 4554290?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4554290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9435158-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4554290 — Rent arrears

Claims and awards in Tenancy Tribunal application 4554290 — net $3,614.29 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$3,614.29

Claims and awards in Tenancy Tribunal application 4554290 — net $3,614.29 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$3,614.29

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The tenant/s] must pay [The landlord/s] $814.29 from the bond in accordance with the following table:
The Bond Centre is to pay the bond of $4,400.00 ([Bond number suppressed]) immediately as follows: $3,585.71 to [The tenant/s]. $814.29 to [The landlord/s].
All other claims are dismissed.

Reasons

This tenancy was contracted to be for a fixed term between 25 August 2022 and 24 August 2023. However, issues started arising before the tenants even moved in and culminated in the tenants issuing a 14-day notice on 8 February. As a result of that notice, both parties agreed to amend the tenancy to a periodic tenancy to enable the tenants to give notice to leave, which they duly did, and the tenancy ended in April.
Both parties now bring claims to the Tribunal which I detail separately below. Unfortunately, the two property managers who were involved with this tenancy, [Property Manager 1] and [Property Manager 2], have both since left the agency. [The tenant/s representatives] who represented the landlord at the hearing only stepped in just prior to the hearing, therefore had limited knowledge of the situation.
For the parties’ reference, in the Tenancy Tribunal, applicants are generally required to establish their case to the civil standard of the “balance of probabilities”. This means that they must prove that the situation is more likely than not to be as they argue or allege. The parties should also be aware that whilst I may not have referred explicitly to all the evidence presented in this matter, it has been considered in the forming of this decision. Landlord’s claim

Did the tenants give notice?

The landlord has applied for rent arrears to the date of 23 April which they say was the last day of the tenancy by the tenants’ notice.
[The tenant/s] agree they owe rent arrears, however only up until 14 April. They say they gave notice to end the tenancy on 4 April however subsequent negotiations meant that they did not actually leave the property until 14 April.
The amount of rent arrears owed comes down to when the last day of the tenancy was, which turns on when and how the tenants gave notice.
On 7 March [Tenant 1] sent an email to the property manager [Property manager 1] saying, among other things: We have found an alternate rental that meets our needs, however fact that we can only start lease in 4 weeks is an issue.... Anyhow, so we need to submit our notice please and ask you to consider reviewing the 4 weeks notice. ... but we don’t want to lose this home to someone else who can move in 2 or 3 weeks time. I do also still need to see if movers are available and when.
[Property Manager 1] replied saying they could not shorten the notice period from 28 days. [The tenant/s] proceeded on the basis they had given notice and had a 28-day notice period, so arranged movers and started packing. An inspection was held 10 days later when [Tenant 1] says it would have been obvious to [Property Manager 2], that they were in the process of moving. They also discussed some maintenance work that was required, to occur when they had vacated.
[Tenant 1] says it would have been clear to [Property Manager 1] that they were giving notice with the email as everyone knew they were looking for a new property and in the email she said, “we need to submit our notice”. Further, the discussions post email involved an understanding that they would be vacating ‘soon’. When they had not heard anything from [Property Manager 1] as to vacating procedures, [Tenant 1] sent an email 1 asking for them, and confirming their move was scheduled for the 28 th day from the 7 March email.
[Property Manager 1] responded by saying that he had not received notice from them. He said he just read her 7 March email to be asking for a shorter notice period and did not take it as official notice. He then took the date the notice was given as the 26 th (being the email date) which would take the end of the tenancy, after 28 days, to 23 April. [The landlord/s representative] confirms the landlord’s position being that notice was not officially provided on the 7 March. The law and discussion
There are several sections in the RTA which assist in the decision on this point.
Firstly, section 51(3) sets out the requirements of a party giving a notice to terminate a tenancy, those being: a. That it is in writing. The email of 7 March clearly was. b. That it identifies the premise to which it relates. Both parties were aware the email related to the relevant premise. c. That it specifies the date the tenants will vacate. [The tenant/s] argue that the reference to the 28 days’ notice period specified such date, the landlord says no date was given. d. That it is signed by the relevant party. The email was signed.
The email did not strictly comply with s51(3) given the lack of reference to a particular date; therefore one must turn to 51(4) which says: In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the 1 26 March expiry of a particular period is stated clearly in the notice, and that any non- compliance is not such as to mislead or affect unjustly the interests of the recipient.
[The tenant/s] submits that the email did not mislead [Property Manager 1] and was sufficiently clear. The landlord says it was not.
85(2) of the RTA says that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Therefore, I am entitled to look at the situation holistically and can consider the substance of the email rather than the particularities of the form of it.
[The tenant/s] says in the email that she needs to give notice and she asks about reducing the notice period. I consider that she was doing both things with this email: giving notice and asking to reduce the notice period.
Further, on the basis of loss mitigation 2 one would expect [Property Manager 1], the qualified and experienced person in relation to the RTA in this relationship, to have probed further into what the intention of her email was if he was unclear. He knew she was new to New Zealand, and he knew that he was the expert on the RTA as compared to her. He also knew she was going to be giving notice at some point. Further on this point, when it became obvious that the tenants were in the process of packing, it would have been prudent for [Property Manager 1] or [Property Manager 2] to seek clarity.
I find that whilst the email did not strictly comply with s51(3), that did not mean that [Property Manager 1] was misled by the email or that it unjustly affected his interests. I find it most likely that he simply misread the email by focussing on the request to shorten the 28 days, rather than the words “we need to submit our notice”.
Having thoroughly considered the situation, I am satisfied that it is in the interests of justice to accept this email as the provision of notice to terminate the tenancy by [The tenant/s]. There was clear reference to the 28-day notice period, therefore the termination date was to be upon the expiry of the 28 days. Accordingly, I find that the tenants are liable for rent up until 14 April being the last day, they had possession of the premise. Tenants’ applications
[The tenant/s] say that they entered into this tenancy on the basis that several items of maintenance would be conducted before they moved in. They were 2 Section 49 RTA not, and they raised this when they moved in, along with other issues of maintenance they found. Their requests to attend to the maintenance went unheeded, and so they issued a 14-day notice on 8 February which in turn led to the end of the tenancy discussed above. The issues of maintenance were not undertaken during the tenancy.
To be specific, they say they were told at the viewing of the property that the broken floor tiles throughout the property would be replaced with the spare tiles the owner had, the grouting around the tiles in the kitchen that was missing would be filled in, the cabinetry in the bathrooms and kitchen that was damaged would be repaired or replaced, the study cupboard would be secured, and the missing lights would be replaced.
Several weeks before they moved in [Tenant 1] attended the property and realised the work had not been done. She asked [Property Manager 1] if they needed to delay their move in date to allow it to happen and he said no, it was scheduled to happen.
When they moved in, they realised that some work, but not the above listed, had been done. The bathroom cabinetry had been patch-painted but otherwise was untouched. The tiles were still in situ and the grouting had not been filled in, and the study cupboard was not secured. They also found some areas of the kitchen surrounding the oven were covered in a viscous oil that could not be wiped off. When they cooked it would liquify and drip. They therefore had to cook with lids on their pots to ensure it did not drop into their food.
The 14-day notice states the following: Not completing the repairs that were promised would be done before we took occupation on 25 August 2023 (as per discussion as well as confirmation in writing via whatsap – copies supplied to you), namely: - Repair/replace bathroom vanities in each of the upstairs bathrooms. Both cupboards needing new doors and the basin in one vanity is cracked, plug faulty as doesn’t operate properly - Broken tiles in hallway and passages to be replaced - Broken tiles in kitchen to be replaced, at the very least the one with the big crack (broken tile has simply been glued back in place still broken, and no grouting) - Kickplates in kitchen to be repaired/replaced - Replace missing / damaged grouting in kitchen - Kitchen to be properly cleaned and all oily residue to be removed from top of cupboards, cupboard surfaces and door handles - Damaged kitchen cupboards to be repaired / replaced - Oven switch that is broken to be replaced - Cupboard in study that is coming away from the wall to be replaced / repaired or even removed and the wall made good - Passage light fitting that is missing to be replaced - Window handle in upstairs bedroom that was lying on the window still has still not been repaired which makes closing the window properly virtually impossible In addition to the above, the following has still not been attended to as per previous discussions : - Bathroom door does not close as reported last year following the inspection visit - Sensor light at rear not working (reported a few months back) - Doorbell not working - Outdoor tap to drain the pond missing and needs to be replaced in order to maintain pond properly (otherwise just a mosquito nest if cant maintain regularly) - Kitchen cupboard below sink has water damage from faulty food waste disposer and needs to be replaced – mould risk
None of this work was completed during the tenancy.
They seek compensation and exemplary damages for these, and other breaches of the RTA by the landlord. I deal with these alleged breaches separately as follows.

Was the tenancy misrepresented?

[The tenant/s] are of the view that the tenancy was misrepresented to them and as such they seek a proportion of their rent to be returned given what they say they had contracted for, was not what they got.
The law relating to misrepresentation is now largely codified in New Zealand in ss.35 and 37 of the Contract and Commercial Law Act 2017, although the common law still also remains relevant. Essentially, as encapsulated in s.35 as far as damages are concerned, if a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to them by or on behalf of another party to that contract, they shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken. The representation however must be one of fact, not opinion. The representation must be false, and it must relate to a matter of present or past fact, not one which relates to the future.
To summarise, for there to be an actionable misrepresentation the following elements must be present: a. A false representation b. The misrepresentation must have been made by one party to the other. c. The party who made the misrepresentation must have intended for the other party to rely on it. d. The misrepresentation must induce the party to enter the contract.
There is no evidence available to persuade me that [The tenant/s] recollection of [Property Manager 1]’s statements of the viewing are inaccurate. Their recollection is specific as to [Property manager 1] saying there were replacement tiles available.
There is evidence of [Tenant 1] sending [Property Manager 1] photos of the work she expected to be done on the 11 th of August (2 weeks before they moved in) to which he responded: “Thanks for sending these through, I have sent a work order to my handyman to work through the items over the next week or so.” A later message on the 15 th from [Property Manager 1] says “Everything will be addressed and sorted this week”
I am satisfied after considering the evidence that [Property Manager 1] did say he would have the work discussed above completed prior to the tenancy. This was clearly a false representation as it was not done, nor was it intended to be done given it wasn’t included in the work order to the trade. Whether that was because of the owner’s instructions not to, or whether he forgot, is unclear. Either way, the work was not done, and [Property Manager 1] did not address that prior to [The tenant/s] moving in.
In saying the work would be done prior to the tenancy, [Property Manager 1] must have intended for [The tenant/s] to believe him and accept it would be done. I do not find it likely however that he intended them to take that undertaking as fundamental to the tenancy commencing, i.e., I do not consider that he understood that they were only taking the tenancy on that basis.
I am also not convinced that he was making a statement of fact, let alone that it was a present fact. I consider he meant his comments to be taken lightly; more likely to say that the house will comply with the law when the tenancy commences, therefore, that any maintenance required by law would be undertaken by then.
I am also not satisfied that this undertaking induced [The tenant/s] into the tenancy. It is not plausible that some cracked tiles, some worn cabinetry and some missing grouting in a house of this size and nature were fundamental to the tenancy. Put another way, had [Property Manager 1] said they would stay as they were, I find it more likely than not that [The tenant/s] would still have taken the tenancy, they just wouldn’t have taken the tenancy with an expectation of having the repairs done first.
Accordingly, whilst I have found that [Property Manager 1] did make the representations he did not keep to, they were not so fundamental that the decision to enter the tenancy hung on them. I also do not consider that they are significantly fundamental as to affect the rental price. Therefore, this claim is dismissed.

Did the landlord comply with s45?

A landlord is required, pursuant to s45 of the RTA to provide and maintain the tenancy premise in a reasonable state of repair. In considering what is reasonable, an objective standard is applied as to what a reasonable person would consider in the circumstances. In such an assessment, the age, and character of the premise is relevant.
[Tenant 1] argues that they were renting an executive house at a high rental, therefore they were entitled to expect there would be few if any maintenance issues. The house is at the higher range of the market, however the rent at $1,100 is not. It is high, but not exceptionally so.
Given this property is of relatively high specifications, I consider that a ‘reasonable state of repair’ of such a home does not have lights malfunctioning, grouting missing and cracks in tiles that cause the tiles to move or debris to collect within them or cupboards that are so unsteady they cannot be used.
The other items I do not consider as so significant. Some of the tiles have cracks which are primarily cosmetic. The water damage to the cabinetry is also only around the edges and are relatively small sections. They do not affect the functioning of the cabinetry and are primarily unsightly. I do not find that these faults detract from the overall high standard of the home.
The landlord’s work order to their trade requests the study cupboard unit be attached to the wall correctly and for the kitchen cupboards and rangehood to be cleaned among other items, none of which were what the tenant discusses here. These two items appear to have been omitted from the work the trade actually undertook prior to the tenancy.
Accordingly, upon assessment of the evidence I find that the property was not provided in a reasonable state of repair, primairly because of the missing grouting and the substantial cracks in the tiles in the kitchen.
Section 45 also requires the landlord to provide the property in a reasonable state of cleanliness. [The tenant/s] say the oil in the kitchen and lack of grouting meant that the house was not provided in such a way. [Tenant 1] spoke with the actual owner in November who said she was aware of the oil from when she lived there some time prior.
[The landlord/s representative] provided evidence of the landlord and their cleaner cleaning the property and then [The property management company] getting their own cleaner to further clean. The inspection photos of the property also establish it was clean and tidy. However, there is no dispute that the oil was present in the kitchen. [Tenant 1] asked [Property Manager 1] to touch it at one stage given he was refusing to accept the issue, but he refused.
The photos establish the oil in several areas of the kitchen. This means that the premise was not provided reasonably clean as required by the RTA which is a further breach of s45.
Breaching the obligations in s45 is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 3 . Accordingly, the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA. The object of exemplary damages is not to compensate, but to punish and deter those who breach the relevant sections of the RTA. They are effectively like a fine, but they go to the person who has been the victim of the conduct.
As the landlord is an experienced property management company, they are deemed to be aware of their obligations. Therefore, the intentional element of s45 is met. Accordingly, in considering an award of exemplary damages I take into account the following: a. The maintenance that was required was noticed prior to the tenancy and a discussion was had about it being completed before the tenancy commenced. There was therefore an expectation that it would be completed prior to the tenancy which was subsequently reneged on by [Property Manager 1]. b. The maintenance was requested during the tenancy, and it was not attended to. c. The grouting and broken tiles would have impacted the ability to clean the kitchen and may well have created an unsanitary condition. d. The oil was significant enough to affect the cooking habits of the tenants. e. The impact on the tenants was to start (and continue) the tenancy in a situation of mistrust and disappointment. They had expected the work to be done before they moved in and had been told it would be. Then when it was not, they were again told it would be, only to later be told it would not. This affected their trust in the landlord company to an extent that the relationship deteriorated so much the tenancy ended prematurely. 3 See section 45(1A) and Schedule 1A RTA. f. The landlord did attempt to address the tenants’ concerns by agreeing to amend the tenancy from a fixed term to a periodic to enable them to give notice to vacate earlier than intended. This was a pragmatic and reasonable response to the situation. g. It is clearly in the public interest that landlords adhere to their legal responsibilities, especially when they initially commit to doing so.
Having considered all of the above, I find that an award of $2,000 exemplary damages justified in the circumstances.
I do not consider a rent rebate appropriate given the tenants had full amenity of the property.

[Property Manager 1] had notified the tenants of an inspection on 30 November. [Tenant 1] responded by saying that day was not convenient and given the issues of maintenance they would like to be present. She asked to change to another day. She has provided evidence that [Property Manager 1] read this request however he did not reply.
On the 30 th [Tenant 1] and her daughter were home unexpectedly as her daughter was ill. During an online meeting she heard people downstairs and came out to [Property Manager 1] and [Property Manager 2] in the house. Her daughter also came out of the bathroom to this, wearing only a towel.
[Property Manager 1]’s emails say that he knocked twice before he let himself in and called out. He said he was entitled to be there as he had given notice despite [Tenant 1]’s request to change the date to which he had not responded.
Section 48 (2)(b) of the RTA requires a landlord to give tenants 48 hours’ notice of the day upon which they intended to enter the property for the purposes of an inspection. [Property Manager 1] had done his, therefore technically he complied with s48. However, I consider that [Tenant 1]’s request to change the day effectively nullified that notice. [Property Manager 1] had seen the message and not bothered to respond, preferring to continue with his own plans. This was disingenuous and disrespectful.
Section 48 is in place for several purposes. One to reflect the fact that tenanted properties are owned by the landlord who is obliged to ensure they are meeting their legal obligations, but also entitled to check their own properties. It is also in place to reflect that a tenanted premise is the tenant’s home. They are entitled to privacy and to live in the property as their home, without fear of unwanted or unexpected intrusions.
I consider it was quite reasonable of [Tenant 1] to not expect [Property Manager 1] on the 30 th and to be upset by his presence. He may well have knocked, but he also let himself into their home when he should have anticipated that he was not expected. Accordingly, I find that [Property Manager 1] has breached s48 of the RTA by entering the premise unlawfully.
Breaching s48 is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00 4 . Accordingly, this was an unlawful act and as above, deemed an intentional one. In assessing an award of exemplary damages, I note the following: a. [Tenant 1] had specifically asked to be present for inspections, not only in response to the notice but she had also asked generally. Maintenance issues were not being progressed and she made it clear she wished to discuss the situation with the landlord. b. Communications were strained by this point, therefore, to specifically ignore a request to reschedule was blatantly disrespectful. c. [Property Manager 1] was well aware of his rights and obligations and yet chose to take the action he did. d. [Property Manager 1] was a team leader in his company and was training another employee at the time. To undertake such a disrespectful activity is not only contravening the law but also setting a bad example. e. It is clearly in the public interest that landlords respect the privacy of their tenants.
Having assessed all of the above factors, I find that an award of $800 exemplary damages is justified. Market Rental
In the tenants’ application, they reference the rental of the property saying it was disproportionately high given the market. As discussed at the hearing this is what is termed a “market rental” application. Sections 25(1) and (3) of the RTA enable the Tribunal to reduce the rental of a property if the current rental exceeds the market rent by a substantial amount. It does not allow for orders to be backdated to any date earlier than the date of application. Accordingly, such an order is of no use to [The tenant/s] given their tenancy has ended. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. 4 See section 48 (4)(a) and Schedule 1A RTA. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. Both parties have sought suppression and as both have been successful to an extent in their claims, I approve those applications.

Tenancy Tribunal case 4554290 — Rent arrears

At a glance

Tenancy Tribunal case 4554290 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenants give notice?

Was the tenancy misrepresented?

Did the landlord comply with s45?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenants give notice?

Was the tenancy misrepresented?

Did the landlord comply with s45?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenants give notice?

Was the tenancy misrepresented?

Did the landlord comply with s45?

Did the landlord enter the premise without consent or notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenants give notice?

Was the tenancy misrepresented?

Did the landlord comply with s45?

Did the landlord enter the premise without consent or notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions