What was Tenancy Tribunal case 4563012 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 4563012?

Property Damage: $200.00 awarded to tenant; Lawnmowing: $25.00 awarded to landlord; Rent Arrears: $707.13 awarded to landlord; Water Rates: $25.94 awarded to landlord

What type of tenancy dispute was case 4563012?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4563012?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9487751-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4563012 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 4563012?

Property Damage: $200.00 awarded to tenant; Lawnmowing: $25.00 awarded to landlord; Rent Arrears: $707.13 awarded to landlord; Water Rates: $25.94 awarded to landlord

What type of tenancy dispute was case 4563012?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4563012?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9487751-Tribunal_Order_Redacted.pdf.

Unit 4, 45 Shakespeare Road, Milford, Auckland 0620 Tenancy Tribunal Case 4563012 — Rent arrears

Claims and awards in Tenancy Tribunal application 4563012 — net $758.07 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears 21-30 April 2023	$707.13		Rent arrears 21-30 April 2023
Lawnmowing	$25.00		151. I therefore order the tenant to pay $25.00 to the landlord for lawn mowing.
Outstanding water rates	$25.94		Outstanding water rates
Exemplary damages: Failure to provide HHS information		$200.00	Failure to provide HHS information
Total award	$758.07	$200.00
Net award	$758.07
Bond	$2,200.00
Total payable by Tenant to Landlord	$758.07

Claims and awards in Tenancy Tribunal application 4563012 — net $758.07 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears 21-30 April 2023	$707.13		Rent arrears 21-30 April 2023
Lawnmowing	$25.00		151. I therefore order the tenant to pay $25.00 to the landlord for lawn mowing.
Outstanding water rates	$25.94		Outstanding water rates
Exemplary damages: Failure to provide HHS information		$200.00	Failure to provide HHS information
Total award	$758.07	$200.00
Net award	$758.07
Bond	$2,200.00
Total payable by Tenant to Landlord	$758.07

Order

The Tribunal orders suppression of both parties’ names and identifying details.
The Tribunal makes monetary orders against both parties, calculated as shown in the table below:
The Bond Centre is to pay the bond of $2,200.00 ([Bond number suppressed]) immediately apportioned as follows. [The landlord/s]: $558.07 [The tenant/s]: $1,641.93

Reasons

Both parties attended the hearing. [The tenant/s] was supported by her mother [Redacted]. [The landlord/s] was supported by his son [Redacted]. [The landlord/s] spoke on behalf of both the trustees.
The tenant makes the following claims against the landlord: a. Bond refund (less $25 lawnmowing already agreed) b. Exemplary damages for breach of her quiet enjoyment and unlawful entry by the landlord or his tradespeople c. Compensation for false advertising d. Failure to provide accurate or complete healthy homes information and failure to provide healthy homes information on request. e. Breaches of the landlord’s obligations under section 45 of the Act, particularly failure to repair a pantry, and failure to remediate health and sanitation issues post-flooding, and mould and moisture problems in the property in general
The landlord has applied for termination of the tenancy for abandonment and further seeks: a. Payment of rent arrears b. Payment of outstanding water bills c. Payment of lawnmowing d. 28 days rent in lieu of notice
At the outset, the landlord confirmed that he did not seek a termination order and confirmed the property was not abandoned. Rather he said he just wasn’t too sure what boxes to tick to correctly reflect the situation at the time he completed the application.
I therefore record that the claim of abandonment was not pursued.
The parties agreed that this tenancy commenced on 30 December 2022 and was originally for a fixed term through to 1 December 2023. The advertised rent was $550 per week.
I also record for context that the premises rented by the tenant were very close to the landlord’s residence. They were essentially neighbours. I record this because to some extent this was a factor in the later dealings between the landlord and the tenant. General Principles in Tribunal Hearings
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 to establish their respective 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 and it is for that party to present that evidence in a clear and succinct way.
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.
Nor is it the job of the Tribunal to trawl though all information provided by the parties to discern each claim and what evidence there is to support it. That burden lies with the party making the claim.
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.
During this hearing, the tenant indicated that she preferred primarily to rely on the evidence that she had submitted ahead of the hearing rather than present her case orally at the hearing. That is her right. I acknowledge that she has provided numerous written statements, submissions on the law, chronology of events, copies of emails and text messages, photographs and other documentary evidence. However, as noted above it is not the job of the Tribunal to discern the details of all the claims based solely on the written information.
The tenant also made oral submissions during the hearing.
In this case, there were hundreds of pages submitted by both parties and I must make it clear that it is simply not possible to recite the entirety of what was presented. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered, whether explicitly mentioned or otherwise. Summary of Tenant Evidence
The tenant said that she viewed the premises when the previous tenant’s belongings were in situ, and that the next time she saw the premises was on 27 December 2022 when she collected the keys from the landlord and did a brief walk through with the landlord.
The tenant said that day was the first time she had seen the premises when it was empty, and she did notice a number of issues with the property. Some of these included the fact that the premises were relatively old, she said there was mould on the curtains in the sunroom (which were then taken down by the landlord on the day she moved in), mould under windowsills, wallpaper ripped, marks on carpet, and general wear and tear.
She did not consider that these items of concern were properly recorded by the landlord on the inspection sheet that the tenant had, and she said that the landlord kept making remarks such as “it’s alright” or “it’s just a rental”.
The tenant accepted that she did not raise these issues directly with the landlord at the time. Rather, she said that she was focused on what she perceived as his unusual manner when she tried to point out the issues.
The tenant also said that at that point in time, she was not looking for a problem and there was some sense of urgency for her to leave her existing rental.
The tenant said that the landlord did not send her the inspection report, despite her requesting it. She said that she eventually received something from him around March or April, but that this came in the form of an Excel spreadsheet. The tenant considered that digital records could be open to alteration which made her uncomfortable and so she asked the landlord for a scanned hard copy, which she says she did not receive.
Nevertheless, the tenant took her own photographs to ensure there was a record of the state of the premises when she moved in.
The tenant said that she generally took the approach of not complaining and so even though there were some issues, she generally did not raise them. This was of course until the Auckland flooding on 27 January 2023.
The first issue the tenant points to were items in the description of the rental property that she feels were misleading. She seeks compensation from the tribunal for false advertising.
In particular, the phrase “fully insulated“, “kitchen recently renovated“, and “all paintwork to a high standard“ were all misleading parts of the advertisement, according to the tenant.
She says that the premises were not fully insulated, that the kitchen had last been renovated around ten years earlier and the paintwork was shabby and worn in many places.
In relation to the healthy homes and insulation statements on the tenancy agreement, the tenant disputes the accuracy of this. She said that she thought the bathroom extractor may not have been working at some point, and she also says that she asked the landlord for the healthy homes assessment. When this was not forthcoming, she issued him with a 14-day notice for that information. The tenant says this was never received.
In relation to quiet enjoyment and unlawful entry, the tenant says that during the four months of her occupancy she became increasingly stressed and tired, which resulted in her ultimately resigning from her employment on 12 April 2023.
Part of the stress she says came from the landlord’s breach of her quiet enjoyment. Matters raised in relation to this claim included: a. That the landlord and other third parties on behalf of the landlord conducted excessive visits to the property which caused frequent disruptions when she was working at home, as well as disruptions during evenings and weekends. b. Excessive text communications from the landlord to the tenant. She says that she felt as though she was expected to be available at any time to answer the landlord despite working full time. c. The landlord had an expectation that the tenant would attend impromptu and informal meetings rather than communicating in writing. She said that more often than not when the landlord wanted access to the premises the landlord did not provide adequate notice as required by section 48 of the Act; she also says there were instances where no notice whatsoever was given and she discovered the landlord (or a third party) on the property. d. The landlord was dismissive of these concerns when raised by her and dismissive of the impact it had on her when work was done in the garage after the flooding. The tenant says the landlord would say things like “it’s only the garage” and “you can still work from home”. e. The landlord accused her of misconduct (use of the “f word”) in retaliation for her raising issues of concern. f. On one of the occasions when workers were in the garage without her permission (to remove asbestos) some of her belongings such as a wine fridge and clothing were damaged. g. Tampering to an external tap one day when she was not home and an unauthorised entry of an unknown person another time. She said she discovered a cable left in the living room and it was this which alerted her to the fact someone had been in the property. h. The landlord had placed compost on top of base soil contaminated by the flood waters which then rendered the vegetables in her garden unsafe to consume. i. The landlord wrongly accused her of inappropriate communications to a lawn mowing contractor
The tenant referred to several other incidents where she alleges the landlord entered the premises without consent and without giving the requisite notice.
She described for example, an occasion that she came home to find some cucumbers on her front doorstep which she said showed the landlord had been over to her property.
She also referred to a text message on 1 March 2023 at 8:48pm in which the landlord referred to having had “an expert do another review this pm” as clear evidence that the landlord has been inside her property without her consent.
The tenant says that asbestos needed to be removed from the garage after the flooding. When the contractors arrived, it was three days earlier than had been scheduled. The tenant said that the text message sent to her by the landlord that day was not properly a request for entry, rather it was a statement. She says this was not him asking for her consent, but instead was him telling her what was going to happen. When queried she accepted that she had not told the landlord “no” but says that at the time she was busy and focused on work issues and did not have the time or energy to be focused on the landlord’s requests for entry.
She describes her response as “damage control” or panicking behaviour. Not as permission . She also said that she felt insecure because the internal garage door was probably unlocked at the time, but the tradespeople were already there onsite.
She says that her text message to the landlord later on where she said, “I don’t think people can come to the property any time they like” and asking for the reason for changing the day, was evidence of her trying to ensure the landlord was aware that she was not happy with it.
In relation to the claim of failure to maintain, the tenant said that there were ongoing issues with a pantry door that was never fixed. Many other issues were raised that related to a failure to adequately remediate issues following the Auckland flooding events in January and February 2023.
There was no dispute that the flooding affected the tenant badly. There was significant water ingress into her home, her car was written off due to flooding damage and I have sighted photographs and considered statements that attest to water rising not only in the garage but into the main areas of the home.
I have no doubt that this would have been heart-breaking for the tenant.
This incident and its aftermath seemed to be the catalyst for the breakdown in the relationship between the tenant and the landlord.
The tenant said that following the flooding the premises were superficially dry, but there had clearly been swelling in the joists, the linoleum floor was never properly dried and felt spongy underfoot, and it ended up stained.
She said that the gap between the interior garage door, and the kitchen did eventually close, but it was clearly swollen for some time. The tenant described there being mould and significant odours throughout the property and in general described a sense of frustration at both the delay and the manner in which the post flood remediation was undertaken.
The tenant agreed that she did not want to leave the premises immediately after the flood, because she liked the area she was living in, and the thought of having to deal with the stress and expense of trying to find somewhere else was too much.
However, she said that she would have expected some rent deduction to reflect what had occurred.
The tenant says that from her perspective there was definitely contaminated water in the premises following the flood.
The tenant pointed me to numerous photos of her house after the flooding and a number of written submissions provided.
The tenant says that for her the crux of the dispute has been the progressive impact on her of the flood and the subsequent handling of it by the landlord.
She said that she had to resign from her job on 12 April 2023, because she was simply under too much stress and not sleeping. She says she has tried to make the best that she can of an unexpected and difficult situation, and that she was surprised by how many different people ended up coming through her property and interrupting her ability to enjoy the property.
She says there was smell throughout the property, which was damp and wet. She tried to continue to ventilate the property, but with the ongoing rain events this made it difficult. She said she ended up putting a number of her personal items in the lounge and sleeping in the smaller bedroom, rather than the master bedroom due to the damp. She says she has had to pay for storage units for her property and thinks that she did well to continue to pay rent at all.
She says that when the flood first occurred, the landlord asked her if she was staying, she believes they were offering her an opportunity to leave then, if she wished, however, at that point, she did not want to leave, she said that things broke down between them and in her words, “things soured between us”. She said that she believes that the landlord was deliberately misreading her emails.
She says the whole situation became untenable and that she was “gobsmacked“ when the landlord did not agree to pay for her offsite storage and decided that for him it was all about money. She says she lost respect for him, that the process was emotionally draining, that she is a good tenant. She is tidy and doesn’t have parties. She says she was currently staying with her mother and that when she is in a comfortable and relaxed environment, she is easy to get on with however the stress of this situation was too much.
Ultimately, the aftermath of the flood did lead to the tenant deciding to end the tenancy. The tenant said she emailed the landlord who agreed to her ending the tenancy in the circumstances.
In relation to the landlord’s claims, the tenant says she is not liable for rent because she gave notice in accordance with section 59 of the Residential Tenancies Act 1986 (“the Act”) which allows a tenant to give two days’ notice in a situation where a premises have been destroyed or partially destroyed so as to make them uninhabitable.
She denies being responsible for the two last water bills, which amounted to just over $25. She said that in fact she should have been compensated, and indeed did ask for a water deduction because her water was being used to clean up on the property immediately after the flood. Summary of Landlord Evidence
The landlord said that the property was fully insulated. The ceiling insulation was above the insulation standard, and the underfloor insulation was done according to standard. He says this was done under the government insulation scheme, and by their contractors. There was no documentary evidence to support the landlord’s statements, however I have no reason to doubt his word on this issue.
In respect of the representation in the advertisement that the kitchen was “recently renovated” the landlord said that the renovation (which included new appliances) was completed in 2012.
The landlord said that he did not intend that to be misleading and said that from his perspective 10 years ago is properly described as “recent”. He can accept however that others may not regard 10 years ago as being a recent renovation.
In relation to paint work, the landlord said that the ad was placed when the previous tenant was still in occupation. He said that he didn’t see any marks, for example on the paintwork or stains on the carpet, only normal wear and tear. It was not until after the tenant vacated – he was able to see some of the issues as described by the tenant. For example, he said they had been painting over the top of wallpaper, but the wallpaper was starting to come away in places. He also identified there was a crack through the paintwork due to the normal movement of the house, however, he said none of this was sufficient to lead him to make any claim from the previous tenant’s bond, as he regarded it or as normal wear and tear.
In relation to healthy home standards, the landlord accepted that the compliance date was probably around early 2022. He said that the previous tenant had been in occupation since December 2021, and assuming that was the first tenancy following 1 July 2021, that would make the compliance date for the property February 2022. Either way, this was well before this current tenancy commenced.
The landlord said that the representations he made on the tenancy agreement in relation to Healthy Homes Standards were ones that he simply copied from the previous tenancy agreement, which had been prepared for him by a Real Estate agent. He said that he believes the property would have been healthy homes compliant, although he accepts that he has not had a formal assessment done to ascertain whether it is compliant or not.
As at the date of hearing, the landlord said that he has booked a healthy homes assessor to come through, but that had not yet taken place.
The landlord’s response in relation to general mould and moisture is as follows.
The landlord said that, although it has been stated there was mould in the bathroom, it was only on the blinds. He said this was something that could easily be wiped off. In relation to the mould, supposedly on the bathroom ceiling, the landlord denies that. He says that what appears to be the most affected area is simply shadow and dust, in particular, he says that those type of textured ceilings can be quite difficult to clean.
In relation to any mould on bathroom walls, the landlord says this is easily cleaned. In relation to the master bedroom, the landlord acknowledges that the bedroom faces the west side (which is the damp side of the property). He acknowledges there was some mildew there on an exterior wall behind the curtain and where the previous tenant had kept her chest of drawers. He said this was able to be wiped off in about 30 seconds, and there has been no sign of it since, the landlord says that that whole wall has now been removed to make way for new job and wall insulation.
The landlord submitted a photograph of some of the framing after the gib had been removed. I do accept that in that particular photo there is no sign of mould, however, that photo on its own probably has limited evidential value given that it is only a small part of the room and it has been taken well after the flooding and removal of the gib.
The landlord said that there was no inherent moisture problem with the property that it was a nice warm and sunny home. He said that any odd bits of mould here and there could simply have been wiped off. The landlord pointed out, there was an HRV system in the property, which would have dealt with most of the moisture issues. He said there were three outlets for that HRV system, one in the dining room, one in the lounge, close to the small bedroom, and one in the master bedroom. He said that the extractor fan in the bathroom and in the kitchen were properly vented to the outside.
In relation to the flooding which occurred on 27 January 2023, the landlord accepted that there was significant water ingress into the property, although he says it was mainly in the garage apart from some seepage from the front door that came into the property. He also accepted there was seepage into the main bedroom. The landlord says the water was coming from underneath or through the framing of the property so that that ultimately the underfloor insulation was completely sodden and required prompt removal after the flood.
He said in the days immediately after the flood, he tried to help the tenant as best he could in a neighbourly fashion, the same way he always did. He managed to obtain a commercial dryer on the Saturday, which was the day after the big flood, and that this was in situ until the end of the Tuesday. He said that in his view, and according to the person who picked up the dryer, everything inside the premises was dry by that stage some 3 to 4 days later.
He said that the insurance claim was made promptly on the Monday.
He said that he did not offer the tenant any rent reduction after the flood, because in his view, they had not been any real change to her living situation other than the removal of the underfloor insulation. The landlord was at pains to point out that the direction of the water flow was from behind the property into the Wairau Creek rather than the other way around.
The landlord accepts that there is a big sewerage line at the back of the section, and I have seen a Council diagram that reflects that. However, the landlord disagrees with the tenant’s view that the water in the premises was contaminated.
The landlord described some difficulties with the builders employed by the insurance company and another sub-contractor.
The landlord said that after the flood the primary matters of urgency were to remove the underfloor insulation, which was soaking, and also to remove the lining from the garage, which was made from fibrelight and contained asbestos. Obviously, that needed to be done very carefully by appropriately qualified experts.
The landlord said that other areas in the home, e.g. carpet and linoleum flooring, did not need to be removed immediately.
In relation to the cable that was left inside the premises the landlord says he simply has no idea where it came from, or who it belonged to.
In relation to the entries into the premises for repairs, the landlord described a situation where the asbestos strip out workmen arrived, unannounced and ahead of their scheduled time. He said that he had to go home where he met them, and he then texted the tenant for her approval for entry. He said that she responded only by talking about various items that she needed to be removed from the garage. The landlord said he took that to be her acquiescence for the tradespeople to start work.
Subsequent to this, the landlord said he thought it might rain, and so he moved the items that they had temporarily placed onto her deck into the landlord’s garage to protect them from the weather. He said he texted her that this had been done to which her reply was “okey-dokey”.
In relation to other occasions, where unlawful entry has been alleged, for example, an occasion where he gave the tenant some cucumbers from his garden, the landlord said he put these items on her doorstep and never went inside the premises. The landlord was very clear that at no stage did he or his wife enter the inside of the property without the tenant’s knowledge.
At some point, once there had been a breakdown in the relationship, the landlord said he simply did not even go on the section, because he was wary of the tenant complaints relating to this.
The landlord denies breaching the tenant’s quiet enjoyment, and says that, in fact, it was other neighbours who were subjected to shouting and swearing from the tenant, he describes her behaviour as breaching others quiet enjoyment.
In relation to the issue with a broken pantry door, the landlord said that he made two attempts to fix this unsuccessfully, and then after the relationship broke down. He said he was not allowed back on the property in order to sort it out
In relation to his own claims against the tenant the landlord accepted that the tenant gave notice on 27 April 2023 advising that she would vacate on Sunday, 30 April. He accepts that from the tenant’s perspective she was giving notice on the basis of section 59 of the Act, which relates to premises which are damaged or destroyed.
However, he says that he simply would’ve liked more discussion with her and that from his perspective, the key feature is that the property was habitable. It had been given a white sticker, and the only issue was the removal of the underfloor insulation and the lining in the garage.
The last rent payment was received on 6 April 2023 which he says meant the tenant had paid up to 20 April 2023.
The landlord accepts that the parties may agree to end a fixed term early, but he believes that he should normally be given 90 days’ notice, so he says that he has been more than reasonable in agreeing for her to only give 28 days’ notice and thus believes the tenant should pay 28 days in lieu of notice.
When queried, the landlord accepted that as at the date of hearing the premises have not been re-tenanted, nor has he sought to re-tenant them at this stage. That is because the landlord is still in the process of trying to get builders and other tradespeople to remedy the areas that have been damaged in the property.
He accepts that the property could not be re-let in its current state, because he says it would not be healthy homes compliant until the insulation and other issues have been remedied.
The landlord claims two outstanding water bills each for the March and April water, which amount to just over $25.
The landlord also says that the tenant owes money for lawnmowing and that this has already been agreed to by the tenant.
The landlord finally says that the whole crux of the dispute is whether the property was liveable, dry, and warm, and he says that it was.
The landlord says that he does not believe that offsite storage for the tenant was required after the flooding; he said that the tenant had earlier told him that she had too much furniture in the lounge, and he assumed that was the reason for her hiring a storage unit.
He said that he found out later that the tenant had stopped using the master bedroom but, in his view, there was no need for her to stop using it as there were no major problems.
The landlord accepts that the tenant was generally a good tenant and that he has no argument about the way she looked after the place. However, his concern is that her interactions with him and his wife, and with other neighbours was unsatisfactory.
He refers to a breakdown in the relationship which led to an inability to deal with things amicably with the tenant.
Generally he says that any issues raised by the tenant were dealt with promptly and professionally, for example he says he assisted the tenant to change over her washing machine hoses which had been wrongly connected to the respective hot and cold taps and he said there was a small leak after that which was fixed on 9 January. The landlord also referred to a subsequent leak in the wall boards, which was probably fixed one or two days after receiving notice of it.
The landlord said that it is correct that the other two units down the same right- of-way were vacated but says that is because they were yellow stickered whereas the tenancy premises was white stickered.
The landlord said he did have a lot of sympathy for the tenant regarding the interruptions while they were trying to get things done, he expressed frustration that he was not even going to use the builders recommended by the insurer and instead was going to use his own builders. However, due to the volume of work required throughout all of Auckland, those works have still not been completed. He says that overall, he always tried to talk to the tenant and tried to do his best but she was simply not satisfied and things became untenable. Findings Bond
A bond is prima facie a tenant’s money and must be returned to a tenant at the end of the tenancy, unless a landlord has established that monies are owing that can properly be deducted from the bond.
In this case, there are three such deductions, for rent arrears, lawnmowing and outstanding water. My reasons for those deductions are dealt with below. Unlawful Entry/Breach of Quiet Enjoyment
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) of the Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A of the Act.
The tenant provided numerous examples where she says the landlord entered the premises, but this was mainly confined to the exterior of the premises. There were also issues related to tradespeople and flooding clean up where the tenant said that she acquiesced to entry but was unhappy about it.
In this case, I am not satisfied that the tenant has established that the landlord has unlawfully entered the premises. Although the tenant has provided a number of examples where the landlord came onto the property, strictly speaking that is not an unlawful entry. A landlord is able to enter onto the outside of the premises and knock on the door just like any other member of the public.
One example was when the landlord left cucumbers on the tenant’s doorstep. This was a neighbourly gesture, not an unlawful entry.
I do not accept that there is clear evidence of the landlord ever entering the inside of the premises without consent or without the requisite notice.
Bearing in mind that the tenant bears the onus of proof to establish the claim, this claim must therefore be dismissed.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) of the Act.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A of the Act.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
In this case, I am not satisfied that the tenant has established that the landlord has breached her quiet enjoyment nor that the landlord has harassed her.
Communications between a landlord and a tenant that relate to the tenancy are unlikely in and of themselves to be a breach of quiet enjoyment. The majority of the interactions between them related to the tenancy. The communications were more frequent following the flooding, but this is to be expected given the situation that had occurred.
Most (although I accept not all) of the acrimony between the parties has occurred following the Auckland flooding and subsequent cyclone. This has been an incredibly difficult time for both the tenant and the landlord.
However, disliking the manner of communication or disagreeing with the other party’s point of view is not a breach of quiet enjoyment.
Bearing in mind that the tenant bears the onus of proof to establish the claim, this claim must therefore be dismissed. Compensation for false advertising
A residential tenancy is a contract.
Pursuant to section 78(1)(h) of the Act, the Tribunal can apply the provisions of the Contract and Commercial Law Act 2017 (“CCLA”).
The CCLA allows for damages (compensation) to be awarded and also provides for cancellation in certain circumstances.
Section 35 of the CCLA provides that a party may be awarded damages if that party has been induced to enter into a contract by a misrepresentation, whether innocent or fraudulent.
Section 37(2)(b)(i) of the CCLA provides that a party to a contract may cancel a contract, if and only if “the effect of the misrepresentation or breach... is substantially to reduce the benefit of the contract to the cancelling party”.
Here, I do accept that the advertisement which described the premises as being “recently renovated” was misleading. A reasonable member of the public is unlikely to consider a renovation that had occurred a decade earlier as “recent”.
However, that does not automatically entitle the tenant to cancellation, or to compensation.
The tenant would have seen the true state of the premises when she viewed it before even entering into the contract with the landlord. She could have either chosen not to enter into a contract with the landlord or to negotiate different terms.
Even if she had not noted the issue prior, she would (and did) notice the issue when she collected the keys and did a walk through with the landlord.
The tenant did not seek to cancel the contract at this time.
Moreover, the tenant accepted that she did not even raise the issue with the landlord. Instead, she said she was focused on his manner, and she accepted that there was some urgency for her to leave her existing rental.
In this situation, it would not be reasonable for compensation to be awarded. The tenant cannot choose to say nothing and then later seek compensation.
For these reasons, the application for compensation under this heading is dismissed. Failure to provide accurate HHS information/failure to provide HHS information on request.
In this case, the landlord accepted that he had no independent evidence as to HHS compliance for the property. He said he simply copied information that he had seen from a previous tenancy agreement. While I understand why he may have done that, a landlord has an obligation to ensure that the information provided is accurate
Nor did the landlord dispute that he had not supplied any records or other documents relating to HHS compliance despite the tenant issuing a 14-day notice in relation to this issue. As at the date of hearing, the landlord said he had arranged for an HHS assessment to be done but it had not yet occurred.
Under section 45(1AC) of the Act, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A of the Act.
The landlord did not provide those records. I find therefore that 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) of the Act.
Intentional means that the party who has committed the breach must be aware of it. The focus of the intention however must be the act (or omission) and not the legal knowledge of the offending party. I find that the landlord’s failure to provide the information was intentional.
Bearing in mind the other factors outlined in section 109(3) and most notably the public interest in ensuring rental properties are warm and dry and compliant with the HHS, I consider an award of exemplary damages is just.
Having said that, there is no evidence that this landlord has previously breached his obligations nor that there was any bad faith on his part. I therefore order the landlord to pay the tenant $200.00 in exemplary damages. Breaches of s45/failure to maintain
Section 45(1)(b) of the Act requires a landlord to provide and maintain the premises in a reasonable state of repair.
Failure to do so is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
The tenant referred to issues with a broken pantry door that she says was never adequately repaired. The landlord’s view was that several attempts were made but he was not ultimately able to repair it, following which he was not able to enter the premises to effect any further repair.
The landlord very clearly did have an obligation to fix the pantry door. However, I am not satisfied that the tenant has established the landlord has failed in his obligations. He made two attempts and then was unable to sort out a further repair before the tenancy ended. In the scale of things this was a relatively minor omission and I do not consider the tenant has suffered any loss as a result.
In terms of other items of repair (such as flooring, insulation, rats, gaps between doors, etc) these largely arose following the flooding. I am not satisfied that there was any undue time delay given the nature and scale of the event that had occurred in Auckland.
Bearing in mind that the tenant bears the onus of proof to establish the claim, this claim must therefore be dismissed Rent Arrears and Water
The landlord provided a rent summary and water invoices.
The rent summary showed that the last rent payment was received on 6 April 2023. Given that the tenant vacated on 30 April 2023, the landlord’s claim is for 10 days’ rent, in the amount of $707.13.
I accept this amount is owing, and it is accordingly ordered.
Similarly, the water records show that there is a balance of $25.94 unpaid for water usage.
The tenant disputes this because she says more water than usual was used during flood clean-up; however just because more water may have been used during this period does not make it a landlord liability.
I accept this is a tenant liability and order payment for water in the amount of $25.94. Lawnmowing
This was not disputed by the tenant who had already agreed to a deduction from the bond.
I therefore order the tenant to pay $25.00 to the landlord for lawn mowing. Rent in Lieu of Notice
The landlord’s claim in relation to this was confusing.
On the one hand, his view was that the tenant was not able to give notice under section 59 of the Act because in his view the property was habitable and had been given a white sticker.
On the other hand, he said that he understood that parties could agree to end a fixed term early but then also said that he thought “normally” 90 days’ notice was an appropriate time frame. He therefore characterised his claim for 28 days as more than reasonable.
Section 59 of the Act provides recourse where, otherwise than as a result of the breach of the tenancy agreement, the premises are so seriously damaged as to be uninhabitable. In those cases, the Act provides that either party may give notice to the other terminating the tenancy.
If this section applies, a landlord may give 7 days’ notice to terminate, and a tenant may give 2 days’ notice to terminate.
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 that caused flooding in many parts of Auckland.
In this case, the landlord was very focused on the fact that, in his mind, any floodwaters that came into the premises were not contaminated because the water was flowing into the river behind the property rather than the other way around.
I do not put much weight on this view because the reality is it was impossible to tell whether or not the water coming into the premises was contaminated by sewage or not. The overall flooding in Auckland caused multiple sewage outlets to overflow and these were everywhere throughout the isthmus. The official Auckland Emergency Management advice was to assume that the floodwaters were contaminated and act accordingly. I see no evidence that would persuade me to depart from this advice.
Similarly, the landlord focused on the fact that the premises were white- stickered to claim that they were habitable.
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 affected with floodwaters damaging the tenant’s car and also entering the main premises.
As a result, the premises were damp and mouldy with significant odours, and I accept the tenant’s evidence that the flooring was spongy underfoot.
I find that in the circumstances the damage caused by the flooding in this case was so serious as to make the premises uninhabitable. It was not reasonable to expect the tenant to remain in a property with these ongoing issues. I note that as at the date of hearing the repairs had still not been completed nor had the landlord relisted the premises for rent.
Therefore, the tenant was able to give two days’ notice to terminate the tenancy. She is therefore not liable for any further rent beyond the vacate date.
Even if I am wrong about the application of section 59, this would not automatically entitle the landlord to rent in lieu of notice. I must consider the circumstances and the effect/loss suffered by the landlord. A landlord is generally not entitled to possession of a property and to collect rent at the same time.
In this case, the landlord has not taken steps to mitigate any loss. He has not re-advertised the premises for rent and is still in the process of undertaking the required repairs on the property.
Bearing in mind that the landlord bears the onus of establishing this claim, I am not satisfied that he has done so, and the claim must therefore be dismissed. Final Remarks, Suppression and Filing Fee
It was quite clear throughout the tenor of the documents and the tone of the hearing that the flooding incident has been quite traumatic for the tenant. I accept unreservedly that the flooding has had a significant adverse impact for her. 1 Auckland Council, Advice for Aucklanders issued February 2023, found at https:// www.aucklandemergencymanagement.org.nz
However, that does not automatically lead to a finding that all adverse impacts suffered by the tenant are the landlord’s responsibility. A landlord has clear legal obligations under the Act. It is not however for a landlord to cure all ills caused by that event. That is simply not possible. Claims for emotional distress that are not directly related to a clear breach of the Act are beyond the ambit of this Tribunal.
Clearly the flooding in Auckland was extraordinary and the damage it has caused throughout the Auckland area and surrounds, along with Cyclone Gabrielle two weeks later, will run into the billions of dollars.
The tenant appeared to take offence during the hearing when I observed that thousands of Aucklanders were going through a similar situation. That observation was not intended to minimise the impact of this event on the tenant; rather it was simply a recognition of the incredible scale of the event and therefore the realities that were faced by both parties when dealing with the aftermath. This includes the delays in undertaking flood related repairs.
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, neither party has wholly succeeded, and both have had a measure of success. As there are no countervailing reasons not to do so, I therefore grant suppression of both parties’ names and identifying details.
As both parties have had some success, I make no order in respect of the filing fee; costs will lie where they fall.
I wish both parties well for the future. J R Smith 02 October 2023

Tenancy Tribunal case 4563012 — Rent arrears at Unit 4, 45 Shakespeare Road, Milford, Auckland 0620

At a glance

Tenancy Tribunal case 4563012 — Rent arrears at Unit 4, 45 Shakespeare Road, Milford, Auckland 0620

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

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Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions