What was Tenancy Tribunal case 4573230 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 4573230?

Compensation: $400.00 awarded to tenant; Water Rates: $52.87 awarded to landlord

What type of tenancy dispute was case 4573230?

The dispute type was not classified.

Where can I read the official tribunal order for case 4573230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9484600-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4573230 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 4573230?

Compensation: $400.00 awarded to tenant; Water Rates: $52.87 awarded to landlord

What type of tenancy dispute was case 4573230?

The dispute type was not classified.

Where can I read the official tribunal order for case 4573230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9484600-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4573230 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4573230 — net $347.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$52.87		Water rates
Compensation		$400.00	Compensation
Total award	$52.87	$400.00
Net award		$347.13
Total payable by Landlord to Tenant		$347.13

Claims and awards in Tenancy Tribunal application 4573230 — net $347.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$52.87		Water rates
Compensation		$400.00	Compensation
Total award	$52.87	$400.00
Net award		$347.13
Total payable by Landlord to Tenant		$347.13

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of [The tenant/s] and [The landlord/s] names and identifying details.
[The landlord/s] must pay [The tenant/s] $347.13 immediately, calculated as shown in the table below:
The landlord must carry out the following work to the premises, which must be completed by 20 October 2023: a. Repair the wall damage in the master bedroom and kitchen.
All other claims are dismissed.

Reasons

Both parties attended the hearing. [The landlord’s representative] appeared for the landlord.
This is a periodic tenancy which began on 10 January 2023. The rent is $740.00 per week and a bond of $2,960.00 was paid.
There are two applications. The tenant has applied for a work order, compensation, exemplary damages, and an order determining the market rent. She claims that the premises was not in a reasonably clean and tidy condition at the start of the tenancy, and the landlord has been in breach of its obligations regarding the condition of the premises. The tenant also claims that the premises does not meet the Healthy Homes Standards (HHS) and that she is paying above market rent. As the tenancy has not ended, the tenant no longer seeks the return of the bond.
The landlord has applied for termination of the tenancy, payment of water rates, and claims that the tenant has failed to allow the landlord entry.
In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means that the party must establish, with evidence, that their claim is “more likely than not.”
The two applications are considered below. Landlord’s application: 4652092

Should the tenancy be terminated?

In the application the landlord sought termination of the tenancy on the basis that the tenant had failed to comply with a 14-day notice requiring the tenant to remedy a breach. The notice was identified as being dated 11 July 2023. In this notice, the landlord required the tenant to remove marks from walls, undertake cleaning, and replace lights. The tenant was also required to replace a wardrobe door, wall damage and the sliding door glass that was cracked.
At the hearing other grounds for termination were noted, including the giving of notice for breaches on three occasions. However, the landlord now accepts that these provisions for termination of the tenancy may not be applicable. The provisions under section 55(1)(aa) of the Residential Tenancies Act 1986 (the RTA) for termination for rent arrears, or anti-social behaviour under section 55A, do not apply here.
In terms of the landlord’s claim under section 56, I find that the landlord has been unable to provide evidence that the tenant has not complied with the requirements under the notice. Furthermore, the evidence provided at the hearing does not establish, to the required standard, that the tenant was responsible for all items listed in the notice. It is now accepted that the tenant did not remove the wardrobe door and that this door was removed by a contractor and has not been replaced. Therefore, it was for the landlord to attend to the reinstatement of this door and not the tenant.
The landlord’s claim regarding responsibility for damage to the ranch slider glass door is disputed by the tenant. The photographic and documentary evidence provided by the landlord is noted. The tenant denies accepting responsibility for the damage to the glass and notes that the photographs relied on by the landlord do not show the door where the glass was cracked. Overall, the evidence is conflicting and therefore, the landlord has been unable to establish that the tenant is responsible for the glass damage.
In terms of the glass door damage, the landlord may repair this damage, since it is the responsibility of the landlord to repair the tenancy premises. 1 The tenant’s responsibility, in this regard, is to notify the landlord, as soon as possible after discovering any damage to the premises, or of the need for any repairs. This is stated in section 40(1)(d) of the RTA.
Regarding the request that the tenant clean the premises, during the tenancy the tenant’s obligation is to keep the premises in a reasonably clean and reasonably tidy condition. 2 “Reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable 3 . So, if it is found that the tenant has been in breach of this obligation, a 14-day notice may be served to remedy this breach, and the landlord would need to establish that, at the end of the 14 day period, the tenant has failed to clean and tidy the premises to a reasonable standard.
In this case, having considered the evidence and submissions of both parties, I find that the landlord has not established that the tenant has failed to keep the premises in a reasonably clean and tidy condition. The evidence concerning this aspect of the breach notice is limited, and the findings below concerning the condition of the premises at the start of the tenancy would appear to contradict the landlord’s claims regarding the cleanliness of the premises. Therefore, the landlord has not shown, to the required standard, that the tenant has breached this obligation under the RTA.
Furthermore, even if the Tribunal was to find that the tenant had been in breach, there would remain the issue of whether the tenant’s breaches were serious enough to terminate the tenancy. The ending of a tenancy has significant 1 Section 45(1)(b) of the RTA and Residential Tenancy Law in New Zealand S. Benson 6.14 at p119 2 Section 40(1)(c) of the RTA 3 Housing New Zealand v Holloway TT Auckland TT215/93, 8 February 1993 implications for the tenant and is a measure that is not taken lightly. There are many factors to be considered in determining whether a breach is serious enough to terminate. This is noted by the District Court decision in Terangi v Housing New Zealand Corporation. 4 These factors include whether the breach is accidental or intentional, any immoral or illegal use, whether a breach is made good by the tenant, the landlord’s conduct, the tenant’s personal qualifications and financial position, the position of third parties, the gravity of the breach, lasting damage, and proportionality.
Applying the relevant factors in this case, even if the landlord had established the breaches noted, as explained at the hearing, the Tribunal is unable to conclude that termination of the tenancy is warranted. Consequently, the landlord’s application for termination of the tenancy is dismissed. Water charges
The landlord provided water rates invoices and a copy of the tenant ledger showing the amount owed by the tenant for outstanding water charges. The amount claimed is for the portion owed by the tenant for consumption (water and wastewater) and does not include fixed water charges.
The tenant feels that the water charges are too high, but has not provided evidence to support this view. While the tenant has been paying regular amounts towards the water charges, this has not covered the full amount due, from the time the tenancy began. Therefore, the tenant is to pay the landlord $52.87 in arrears for water charges. There may be additional amounts due, but as they are not shown to be arrears, and would appear to be current charges, any amount due under the current invoice is not awarded. Failure to allow entry
The landlord claims the tenant has failed to allow the landlord entry and access to the premises for inspections. It is noted that access for inspections was denied on 13 January and 27 January 2023.
Section 48 of the RTA sets out the landlord’s right of entry. A landlord may enter the premises during the tenancy with the tenant's consent (freely given at or immediately before entry), 5 in an emergency, or after giving the required notice for inspections, repairs, and maintenance. 6 Under section 48(2)(b), the landlord 4 DC Porirua CIV-2010-091-110, 28 June 2010 5 Section 48(1)(a) of the RTA 6 See section 48(1) and (2) of the RTA has the right to enter the property for the purpose of inspecting the premises, provided the tenant is given between 48 hours and 14 days’ notice.
If the tenant fails, without reasonable excuse, to allow the landlord to enter the premises where the landlord is entitled to enter the property, this is an unlawful act for which exemplary damages may be awarded. 7 Equally, a tenant is entitled to quiet enjoyment of the premises without interruption by the landlord, any person claiming by, through or under the landlord or with superior title to the landlord. 8
In situations such as this, it can often involve balancing the rights and interests of the parties. In this case, the tenant has explained her concerns regarding the condition of the premises when she moved in. In view of her need to clean the property and remove rubbish, it seems that the timing of the landlord’s initial inspection was premature. However, it is unclear from the tenant’s explanation why access for an inspection was denied the second time. On the other hand, it may be noted that the tenant has given access to the premises where the landlord has arranged for contractors to carry out work to address maintenance issues. Therefore, taking the overall evidence into account, the current evidence falls short of establishing that the tenant has failed, without reasonable excuse, to allow the landlord to enter the premises when entitled to do so. Accordingly, this claim is dismissed. Tenant’s application: 4573230 Cleanliness of the premises
The tenant claims that the premises was not clean at the start of the tenancy and seeks compensation for the cleaning and rubbish removal that she has undertaken.
Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) of the RTA).
The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs. The standard will vary according 7 Section 48(4)(b) 8 Section 38(1) to the age and condition of the premises: the better the premises, the higher the standard.
In this case, I am satisfied that the evidence shows that the premises was not in a reasonable state of cleanliness at the start of the tenancy. The tenant’s photographic evidence, together with the evidence from the landlord’s inspection report, shows that some further cleaning was required.
Having made that finding, I do not accept the tenant’s view that she ought to be compensated to the level claimed in her invoice ($1,607.18), since it seems unlikely that 60 hours of cleaning was required. I also note that the landlord did partly address this issue by undertaking carpet cleaning. However, there were other areas within the premises that required attention.
Taking all these factors into account, an amount of $400.00 is awarded to the tenant in compensation. The tenant also seeks exemplary damages. In view of the lack of intent by the landlord, there is no award for exemplary damages. Work order
The tenant’s application lists the following items to be addressed by the landlord: • Removal of mould • Faulty heat pumps • Damaged clothesline • Damage to walls • Infestation of insects • Unstable power points • Broken window handles • Missing blinds in bedroom 1 • Oven to be cleaned and repaired • Property to be cleaned.
Under section 45(1)(a) - (ca) of the Residential Tenancies Act 1986 (the RTA), the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements. Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) of the RTA.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) of the RTA.
In this case, the tenant gave notice to the landlord, soon after moving in, regarding work that was required on the premises. In her evidence she has provided a notice dated 25 January 2023. The parties’ evidence at the hearing shows that a number of the items have already been addressed by the landlord. The parties agree that the following issues have been resolved: • Damaged clothesline: the damaged clothesline has been removed and replaced • Unstable power points: this has been addressed • Broken window handles: the handles have been replaced • Missing blinds in bedroom 1: curtains have been installed in place of the blinds. • Oven: the oven has been replaced with a new oven
In terms of the heat pump, there has been no evidence provided to show that it is not functioning. The tenant has indicated that she wanted someone to show her how to operate the heat pump, as she was unsure how it worked. The landlord has agreed to show the tenant how the heat pump functions. Therefore, this issue would appear to have been resolved.
The other matters to be addressed are: the presence of mould, holes in the walls (this was only partly addressed), infestation of insects and tidying of the property.
The tenant has given evidence that she has cleaned the premises and, following my findings above, she is to be compensated for it. Therefore, the issue concerning the cleaning and tidying of the premises no longer needs to be determined. The issue of mould is addressed under the Healthy Homes Standards heading below.
The tenant’s evidence concerning the infestation of cockroaches is unclear. Therefore, I am not persuaded that there is sufficient evidence to show a breach on the part of the landlord. It is not uncommon for pests to enter dwellings, even where the building is new, maintained to a high standard and kept immaculately clean. There is also an obligation on the tenant to keep the premises reasonably clean and tidy, which can extend to some pest control. More is needed to establish this type of claim than the description of pests being present. So, based on the current evidence, the landlord will not be required to take any further steps to address the alleged infestation of insects.
The landlord has addressed the wall damage in the hallway, but not in the master bedroom and kitchen. The balance of the work needs to be undertaken by the landlord. The landlord has expressed its willingness to do so. The landlord is to make the necessary arrangements for this work to be undertaken and completed by 20 October 2023. Healthy Homes Standards
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).The tenant has listed the following in her application: • Ventilation • Moisture • Heating • Dampness • Draught.
Compliance dates for the HHS vary depending on the tenancy: • All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. • All boarding houses must comply by 1 July 2021. • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. Again, the HHS does provide exemptions in specific circumstances.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. The HHS does provide exemptions in specific circumstances.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The HHS does provide exemptions in specific circumstances.
Breaching any of the obligations above is an unlawful act for which exemplary damages may be awarded, up to a maximum of $7,200.00. See section 45(1A) of the RTA. Findings regarding the Healthy Homes Standards
At the hearing, the tenant explained that she considered that the premises did not comply with the HHS, due to the presence of mould, but did not provide any further details or evidence in support. In particular, there was no recent photographic evidence to show that there was an issue with mould in the premises. Evidence supporting breaches of the other standards has also not been provided.
On the other hand, the landlord’s evidence in response indicates that the premises complies with the HHS. The landlord has submitted a report following an inspection on 11 March 2021 completed by [inspection company]. This report makes the following findings regarding the issues raised by the tenant: • Ventilation: all windows were found to open and close properly with latches. There were effective fans vented to the outside in the two bathrooms. There was also an effective fan in the kitchen that was vented to the outside. • Moisture/Dampness: the inspection showed that all rooms were clear of mould and dampness. • Draught: the entrance to the premises and all rooms in the premises were found to be free of all gaps and holes that may cause noticeable draughts. • Heating: in the main living area the requirement was that there was an approved fixed heating device with heating capacity of 5.2kw. The current heat pump provided 5.8kw of heating and was therefore compliant.
Concerns regarding the level of heating is likely to be addressed once the tenant has been given the necessary instruction on how to operate the heat pump which has been installed in the premises.
Therefore, while the tenant has claimed breaches by the landlord under the HHS, she has been unable to provide the necessary evidence to support her claim. Accordingly, this claim is dismissed. Market rent
The tenant has applied for an order of the Tribunal to determine the market rent for the tenancy. The tenant states that the current rent of $740.00 per week is too high, and feels that it ought to be $680.00 per week. She has looked at the Tenancy Services website, but has not provided any further evidence in support. The landlord considers the tenant is paying a fair market rent for the premises, and has provided examples of rent for comparative properties in the area.
Where an application is made by the tenant for an order determining the market rent, the Tribunal may make an order reducing the rent where it is satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount: Section 25 of the RTA.
Market rent for any tenancy is, under section 25(3): the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents .... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
In the decision of Fisken & Associates Ltd v Lecole & Lecole [2023] NZDC 17698 the Court confirmed that the Tribunal must first determine what the market rent is, which can only be done on the basis of some evidence which the Tribunal accepts. When making a finding as to what the market rent is, rentals paid for comparative properties are objective facts which can be proven.
When determining the market rent, the test is essentially an objective one. In the decision of Thai v Mahmood 9 the Court stated: When considering claims that a rental being charged is too high, the first consideration is to assess the general level of rents for comparable tenants of comparable premises in similar locations. It is not open to the Tribunal to make a determination as to market rents having regard only to such matters as the Tribunal considers relevant. 9 DC Christchurch CIV-2003-009-2542
In this case, the tenant’s view regarding what she considers to be the market rent for the tenancy is not supported by any objective evidence. To establish what is the market rent, there must be more than the tenant’s own appraisal of the rental market. In this case, in the absence of any objective evidence of the market rent, I am unable to find that the rent payable by the tenant for the tenancy exceeds the market rent by a substantial amount. Therefore, this claim is dismissed. Filing fee
As neither party has been substantially successful, each is to meet the cost of their own filing fee.

Tenancy Tribunal case 4573230 — Tenancy dispute

At a glance

Tenancy Tribunal case 4573230 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions