What was Tenancy Tribunal case 4563622 about?

The tribunal order states: An application for suppression has been made in this case, and the

How much money was awarded in case 4563622?

Compensation: $2,100.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4563622?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4563622?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10307567-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4563622 about?

The tribunal order states: An application for suppression has been made in this case, and the

How much money was awarded in case 4563622?

Compensation: $2,100.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4563622?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4563622?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10307567-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4563622 — State of repair

Tenantcheck Insights

Reasons

. It was the landlord who filed the application for rehearing, not the tenants.

Claims and awards in Tenancy Tribunal application 4563622 — net $3,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,100.00	Compensation
Exemplary damages - failure to maintain	$1,000.00	Exemplary damages - failure to maintain
Exemplary damages - Failure to advise property on the	$600.00	Exemplary damages - Failure to advise property on the
market Filing fee	$20.44	market Filing fee
Net award	$3,720.44
Total payable by Landlord to Tenant	$3,720.44

Property Brokers Limited will pay [Tenant 1] and [Tenant 2] the sum of $3720.44 immediately.

The tenants’ applications for compensation for improvements to the property, health issues, removal costs, improper and retaliatory notice are dismissed. DescriptionLandlordTenant Compensation$2100.00 Exemplary damages - failure to maintain$1000.00 Exemplary damages - Failure to advise property on the$600.00 market Filing fee$20.44 Total award$3720.44 Total payable by Landlord to Tenant$3720.44 Reasons:

Both parties attended the hearing. The tenants attended the hearing in person together with Ms Cowan who represented the landlord, Property Brokers Ltd (“PB”). Ms Diddivich, also representing PB attended the hearing by teleconference. Ms Brenssell, the owner, attended the hearing by phone as a witness.

On 17 August 2023 the Tribunal ordered that PB must pay the tenants $3020.44 representing exemplary damages and compensation.

The landlord filed an application for rehearing and on 10 November 2023 the Tribunal ordered that the matter be reheard. At the conclusion of the rehearing both parties were given the opportunity to provide further evidence as directed by the adjudicator. The final submissions were received on 14 March 2023.

The tenancy commenced on 24 February 2021 and ended on 8 November 2022. The tenants have made a number of claims for compensation and exemplary damages.

The Tribunal concurs with the conclusion of Ms Baker in the original order, that after taking into account the documentation and legal precedent, that the landlord in this case is Property Brokers Limited. The tenancy agreement was signed without qualification that is, that PB was not acting as the agent for the landlord.

Considerable evidence was given by both parties in orally and in writing and issuing this order not every bit of evidence may be referred to but all the evidence has been taken into account in the Tribunal making its decision. In the tenants’ final submission, they did make responses to some claims PB and Ms Bressnell made during the hearing, however there are no claims being made by PB against the tenants that I am required to consider. State of the premises at the start of the tenancy

The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must provide the premises in a reasonable state of cleanliness.

The tenants stated that the premises were unclean and untidy, both inside outside. In particular they noted the gardens were untidy, there were piles of garden waste, rotten wood, a methamphetamine pipe was lying on the ground, the outside areas were mouldy on the paths and paving. They also stated, the bathroom and laundry were filthy with blobs of faeces and caked urine on the floor, the fire had not been cleaned and there were rat droppings in the back of the stove and in the cupboards. The tenants presented photographic evidence to support the claims about the condition of the property.

The landlord also present photographic evidence of the entry inspection showing photographs of the bathroom and toilet, the inside of the oven and the cupboards. These photographs did not show the condition as shown by the tenants, but appeared to show the promises internally as reasonably clean, however the tenants photographs were taken much more closely and I find it is more likely than not that the premises were not left in a reasonably clean and tidy condition.

Aside from notification to the landlord that the lawns required mowing and the weeds tidied prior to the tenancy commencing, I found no evidence that the concerns as to the condition of the property condition were raised with the landlord at the commencement of the tenancy. The tenant emailed the landlord on 10 Mach 2021 with some requests for additions they wished to make to the house but at no stage was there any mention of the condition of the premises at the start of the tenancy.

It is well settled that if there are issues with the condition of the premises at the start of the tenancy then they should be raised with the landlord at that time. The tenants said as they were confident from the assurance from the property manager at that time that this would be a long-term tenancy, they decided to put their own projects aside and set about cleaning and bringing their property up to standard.

As concerns were not raised with the landlord at the commencement of the tenancy giving them an opportunity to remedy, I will not be awarding exemplary damages. I do acknowledge however that there was cleaning and outside clear up to be done to bring the premises up to a reasonably clean and tidy condition and in recognition of this I award $300.00 in compensation. Improvements to the property

The tenants are claiming $3000 compensation for work they undertook in bringing the property up to standard as well as reimbursement for some of the items they purchased.

The tenants stated that the property manager at the time who showed them the premises assured them it was for a long-term rental. When they made the request referred to above to add additional items to the premises, the landlord responded that the owner approved these requests as they wanted it to make “it their home”. It was on this basis they said that they proceeded to make improvements to the home.

They were obviously very disappointed when the premises were placed on the market later in the tenancy, but a periodic tenancy had been signed and the nature of a periodic tenancy is that there should be no expectation that a tenant will be able to remain in the tenant long term. This may or may not eventuate but the Residential Tenancies Act 1986 (“RTA”) provides grounds on which periodic tenancies may be terminated.

In light of this the landlord has no obligation to compensate the tenants for the time and any expense they may have incurred in improving the condition of the premises. Failure to maintain

The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 in not providing and maintaining the premises in a reasonable state of repair.

Breaching any of these obligations 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 Residential Tenancies Act 1986. Roof

On viewing the premises the tenants noticed there was a bow in one of bedroom ceilings but they accepted the word of the property manager that the ceiling had been repaired. They were also informed that the roof was going to be replaced probably within the year.

On 7 February 2022 [Tenant 2] emailed the landlord advising that although the new property manager may not be aware of it, when they moved into the property in February 2021, there was a crack along a join in the ceiling of the master bedroom and the ceiling was a bit saggy around the crack. In order to prevent dust entering the bedroom the tenants had offered to seal the crack and the owner had agreed. They stated that since they had resealed the crack three or four times. I find no evidence that these extra required steps had previously been raised with the landlord.

[Tenant 2] advised PB that on that day there had been heavy overnight rain and water had started dripping through the crack. She said it appeared that the water was entering along the roof tiles and suspected that the insulation throughout would be wet, hence causing the sagging.

PB responded the next day saying they had discussed it with the owner who would send a tradesman over to deal with the issue as soon as they were able. A contractor attended and repaired the leak in the ceiling with fibreglass paint but did note that this was only temporary.

The tenants believe the roof was in poor condition and that the undertaking given at the start of the tenancy that the roof would be placed in a year was not upheld.

Ms Brenssell gave evidence that it was their intention to replace the roof and they had contractors look at various options for it. The roof was old with concrete tiles causing the water to seep under. After investigations the contractors advised that the wooden beams under the tiles would also need to be replaced and then reroofed in colour steel. She said that they had been unable to get a price for the building component of this large job that by the end of January 2024 they had been able to complete that work.

I conclude that when the leak occurred after the large rain, a temporary repair was undertaken in a timely fashion, but from all the evidence it is clear that the roof needed replacement. There is no evidence that the tenants were inconvenienced by any further water ingress for the balance of the tenancy and while they believed the water ingress would have soaked the insulation there was no evidence that this had occurred in a widespread way.

I find that it was not an intentional act on behalf of the landlord not to replace the roof but rather difficulty in bringing the project together.

The tenants have claimed for the cost of a replacement bed because of the leak however there was no evidence that the bed was damaged to an extent that it needed replacement but it was an inconvenience for [Tenant 1] who moved to another bed in the house for a period.

While the claim for a replacement bed is dismissed and no award of exemplary damages will be made I do however award compensation of $100 for the inconvenience caused to the tenants as a result of the leak, which only occurred because of the known poor condition of the roof. Bird’s nest

At the time their contractor repaired the roof he advised the tenants that there was a large bird’s nest located beside the metal chimney in the ceiling cavity. The tenants advised the landlord and Ms Brenssell attended, on 4 March 2022, without notice, to remove it.

There is a dispute between the tenants and Ms Brenssell as to whether notice was given for the attendance. The Tribunal understands that Ms Brenssell came to the premises and said she was there to remove the bird’s nest. The finding of the nest and its location was obviously of concern to the tenants, and while no formal notice was given, Section 48 of the Act provides that the landlord shall not enter the premises during the currency of the tenancy agreement, except with the consent of the tenant freely given at, or immediately before, the time of entry. On this occasion the tenants did allow access to Ms Brenssell.

Ms Brenssell asked for the assistance of one of [Tenant 1] in supplying more rubbish bags for the debris and passing down the bags. They also had to clean up the debris below on the floor. As they had disabilities, they were not happy with this and found it challenging.

The tenants checked in the roof cavity after he had left and despite his reassurance it was all gone, there were still remains of the nest through the cavity and more concerningly still dried grass and debris around the metal chimney.

With winter approaching the tenants were concerned about the potential fire hazard and they contacted PB and asked them to have the rest of the bird’ nest removed. On 17 March 2022 PB responded saying the owners were happy with the attic cleanup and wouldn't be removing any more of the nest.

On 19 September 2022 there as a fire callout to the property. The fire report noted smoke on arrival but the report itself is somewhat inconclusive. It noted the location was the kitchen cooking area, heat source was embers and ashes and the indicated cause undetermined. In comments to the report it noted it was caused by bird’s nest around the flue.

While the fire report was inconclusive it is clear that the known poor condition of the roof was what allowed birds to enter it in the first place. The tenants had valid concerns that with some of the bird’s nest still against the flue, there as a potential fire risk when the fire was lit. Despite the owners declining to return to the property, PB as the landlord should have attended the property and satisfied themselves that the premises were safe.

I award $100 compensation to the tenants for inconvenience in assisting the owner to clear the nest and clean up after wards.

I find PB have committed an unlawful act in not ensuring the safety of the premises after concerns had been reported to them.

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) Residential Tenancies Act

I find PB did act intentionally in not attending the premises to assure themselves as to its safety and maintenance after having been alerted to the concerns of the tenants. I award the amount of $1000 in exemplary damages. Health issues

The tenants seek compensation in regard to the effects the condition of the premises had on their health including exacerbating their arthritis and eczema. They also stated that given the age of the roof the dust that came off when heavy vehicles passed could have been asbestos.

There was no evidence presented of scientific results establishing the dust was in fact asbestos, nor any medical evidence directly linking their conditions to the condition of the property.

I also note that if they had not been given notice to vacate, they were wishing to remain in the premises long term.

Claims for compensation for health issues are dismissed. Premises on the market

The tenants claim the landlord has breached their obligations under section 47 RTA. This section provides that a landlord must give written notice to the tenants immediately if the premises are placed on the market.

Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to $1800.

Early in November 2021 a real estate agent from [Real Estate 1] visited the property advising them he was selling it on behalf of the owners. He said it was likely an investor would buy the property and he would put in a good word for them and therefore it was in their best interests to cooperate with the process, which they did. PB were not aware the owner was placing the premises on market and at no time did the tenants receive formal advice of this.

From 21 November 2021 through to July 2022 they tenants had open homes almost every weekend totalling 21 and three private viewings.

From the indications given by the real estate agent the tenants believed it was in their best interest to present the premises in the best way they could.

On 2 August 2022 the tenants received advice from the real estate agent that he was no longer marketing the property and it was being withdrawn. The next day PB emailed the tenants advising them that [Real Estate 2] would be in contact with them regarding an appraisal of the property. They followed that up on 12 August with a notice that the property had been listed with [Real Estate 2] for sale.

I find that from 11 November 2021 through and till 2 August 2022, at no time had the tenants being formally advised by the landlord that the property was on the market. While this had clearly been arranged by the owner the obligation lay with PB as the landlord and I find they have committed an unlawful act.

While it appears PB were initially unaware the property was listed but as soon as they became aware they should have fulfilled their obligations to advise the tenants formally and hence they have committed an unlawful act. It is in the public interest to be assured that landlords fulfilled their obligations under the Act.

I award the amount of $600 in exemplary damages. Unlawful entry in breach of quiet enjoyment

The tenants claimed that on a number of occasions the owner or PB’s agents came onto the property without proper notice and that their quiet enjoyment has been breached.

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) Residential Tenancies Act 1986.

For the purposes of section 48 RTA, ‘premises” does not include land or facilities hence entry onto the land does not require notice under the Act. Entry by the owner

The incident where the owner came to the premises without prior notice to remove the bird’s nest has already been addressed in the earlier part of this decision.

Following an incident where the neighbour damaged the fence with their car the owner came to the property to undertake a repair. He had not given notice.

The tenants said they did not realise it was the owner until he had gone.

While it would have been courteous to introduce himself there was no legal obligation on him to give prior notice. Breach of quiet enjoyment

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) Residential Tenancies Act 1986.

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 RTA.

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. Spraying

On 10 February 2021 the tenants emailed the landlord saying that when they had viewed the property it appeared to be very overgrown and they wished it to be tidied prior to the tenancy commencing. They made it very clear to the landlord that they did not wish to have any herbicide spraying undertaken at the property. The tenants were responsible for the lawns and gardens and the landlord was responsible for the trees.

When they moved in on 24 February 2021 it appeared that in extensive spray had already taken place but the lawns had not been done.

They advised PB of this on 24 February, and they replied the following day saying that the lawns would be done and the weeds would be cleared and confirmed that there would be no spraying undertaken.

Early one morning in June 2021 the tenants of awoke to find someone spraying outside within the premises and a number of the plants were damaged.

On 11 November 2021, the same day they were advised the house was going to be marketed for sale, a contractor was undertaking spraying, unbeknownst, to them, along the grass edge of the footpath and into the garden spraying along the front of the house and down the driveway. As he came to the back of the house he knocked on the door and when asked what spray he was using he advised it was glysophate. The tenants informed him that there was to be no spraying at the property and asked him to leave.

Towards the end of the tenancy there was email correspondence between the owner and the landlord and the landlord to the tenants, stating that if they did not tidy the section the owner would bring in a sprayer.

The tenants were opposed to this and saw no need as the section had been tidied by them and the only place there were weeds was in the centre of the gravel driveway and it was hard to weed those out. They felt pressured into allowing spraying to take place, although I am unsure if it did actually occur.

It appeared from the evidence given by Ms Bressnell, that it was they who organised the spraying although she can’t recall arranging for spraying in June 2021. She is unable to locate any invoices.

I find for the following reason there has been a breach of the tenants’ quiet enjoyment, while not reaching the level to find harassment: a. The tenants had made it very plain at the commencement of the tenancy there was to be no spraying and the property manager at the time, Ms Williams, gave that undertaking; b. Spraying did take place on 3 occasions without consent of the tenants. c. The obligation of the tenants was to keep the premises reasonably clean and tidy, including the lawns and gardens, not pristine, and photographic evidence would support that they did. d. There is no record of 14-day notice being served by the landlord claiming the tenants were breaching this responsibility.

Taking all of the above factors into account I award the amount of $400 in compensation. Open homes

Between 21 November 2021 and 17 May 2022, a total of 21 open homes were held by [Real Estate 1], almost one every weekend. In addition, there were 3 private viewings.

The tenants had agreed to these as the agent had told them it was likely an investor would buy the property and if they cooperated, he would put in a good word.

Leading into each weekend they readied the house and section for the open homes, and no doubt had to leave the home while the open homes were occurring. PB had no part in arranging these open homes, but Ms Bressnell in her evidence said she had indicated to the agent they really wanted to sell so to have as many open homes as needed.

While they did consent to the open homes it was on the basis of the agent’s statements.

In Jabeen v Ward In Jabeen v War (09/05145/AK) compensation was ordered of one week’s rent as compensation for 8 open homes over 4 weeks. The open homes in this current case, and expectations on the tenants, warrant a considerably higher award of compensation for the breach of the tenants’ breach of quiet enjoyment and I award the amount of $1200, the equivalent of 3 weeks rent. Retaliatory Notice and unlawful termination

The tenants claim the landlord gave unlawful notice to end the tenancy and that the notice was retaliatory.

Under section 51(2) a landlord may terminate a periodic tenancy by giving at least 90 days’ notice if the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale of other disposition.

A landlord who gives notice, knowing they are not entitled to, commits an unlawful act. See section 60AA.

On 2 August 2022 the property was withdrawn from marketing with [Real Estate 1].

On 3 August 2022 the landlord advised the tenants that the owners intended listing the property for sale with another agent and that agent would be in touch to arrange photographs etcetera. On 12 August the landlord advised the tenants the property was now formally on the market again, although the evidence was that the marketing did not proceed.

On 19 August 2022 PB served the tenants with a 90 days’ notice under section 51(2). The last day of the tenancy was to be 18 November 2022.

Tenants gave 28 days’ notice to vacate with the tenancy ending on 8 November 2022. They stated that they kept an eye on listings and noted that the premises were advertised for rent from 18 November at a higher rent.

They believe the owner had no intention of selling the property and their intention was to remove them from the tenancy so they could re-tenant at the property at a higher rent. In addition, they do not believe the notice was valid as at the date it was served on 19 August 2022 the property was already on the market.

Ms Bressnell gave evidence that it had always been their intention to sell the property. They had a number of properties they intended to sell, but on 17 November 2022 a contract on one of the other properties became unconditional which meant there was no longer the need for them to sell this property. They moved into the property themselves to undertake some maintenance and then was being re-tenanted.

I accept the evidence of Ms Bressnell as to their intention at the time they gave the 90 days’ notice. Of course, circumstances can always change in the interim, which was the case here. The tenants submitted the notice was invalid because the property was already on the market I find that given there were only seven days between the property being listed and the notice being given it does not invalidate the notice. The Tribunal has previously ordered that Section 51(2)(a) does not require a landlord to wait until the expiry of the 90-day notice has previously ordered that Section 51(2)(a) does not require a landlord to wait until the expiry of the 90 day notice before the property can be marketed. See Krom v Batchelor [2021] NZTT 4316148, 4316302

I find the 90 notice was valid and there has been no unlawful act.

The tenants also claim the notice was retaliatory.

For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. This application must made within 28 working days after receipt of a notice terminating the tenancy. See section 54(1) Residential Tenancies Act 1986.

The tenants’ application claiming retaliatory notice was made on 2 May 2023, well outside the time allowed in s.54 and as such the claim is dismissed. Moving costs

The tenants have claimed for their removal costs.

While I acknowledge that the tenants believed that the tenancy would be long term, given it was a periodic tenancy there was no certainty about this. As the claim for unlawful notice and retaliatory notice has been dismissed there is no basis for an award of removal costs.

Because [Tenant 1], [Tenant 2] has substantially succeeded on some of their claims I have reimbursed the filing fee.

Reasons

. It was the landlord who filed the application for rehearing, not the tenants.

Claims and awards in Tenancy Tribunal application 4563622 — net $3,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,100.00	Compensation
Exemplary damages - failure to maintain	$1,000.00	Exemplary damages - failure to maintain
Exemplary damages - Failure to advise property on the	$600.00	Exemplary damages - Failure to advise property on the
market Filing fee	$20.44	market Filing fee
Net award	$3,720.44
Total payable by Landlord to Tenant	$3,720.44