Published tribunal order
Tenancy Tribunal case 4575469 — Tenancy dispute
Decided 19 Oct 2023 · Published 19 Oct 2023 · Application 4575469
- Leaks
- Mould & damp
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the names and identifying details.
- [The tenant/s] to pay [The landlord/s] $701.38 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,760.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $701.38 [The tenant/s]: $1,058.62
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, water rates, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The tenant has filed a cross application wanting the bond, and compensation because it has taken the landlord so long to finalise the bond refund.
How much is owed for rent?
- The tenancy ended on 23 March 2023. This was not the usual end to a tenancy, because the Council found the house uninhabitable, and the landlord gave a 7 day notice to terminate the tenancy. The tenant moved out on 23 March 2023.
- The landlord provided rent records which prove the amount owing at the end of the tenancy. The tenant did not agree to pay because the landlord had reduced rent to zero on 10 February 2023, and the house was uninhabitable.
- I have seen the email sent to the tenant on 10 February 2023. It clearly sets out that no rent will be charged for two weeks, starting that day. The tenant paid no more rent at all because of the circumstances of the leak, and the toxic mould. The landlord did not issue a notice for rent arrears during that time. In fact, the landlord did not ask the tenants to pay rent until the day before the Tenancy Tribunal hearing on 31 March 2023, which was after the end of the tenancy. The amount claimed is $2892.86.
- The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) Residential Tenancies Act 1986). This includes equitable remedies such as estoppel.
- A party claiming an equitable estoppel must establish that: a. A belief or expectation has been created or encouraged through some action, representation, or omission to act by the other party; b. The belief or expectation has been reasonably relied on to their detriment; c. It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.
- The underlying principle of equitable estoppel is to prevent the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable. This principle is entirely consistent with the jurisdiction of the Tenancy Tribunal (Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 & 4053657), in particular s 85(2) RTA, provides that: The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
- I find the landlord’s omission in asking for rent to be paid from 24 February until the end of the tenancy set up a belief and an expectation that no rent was being charged for the house. The tenants did not pay, and that is now to their detriment. I find it would be unconscionable for the landlord to decide - after the tenancy ended – to retrospectively charge for rent.
- The parties do not agree on the amount of rent owing on 9 February, so I have gone back to the last payment on the rent summary and made my own calculations. I can see $321.43 was owing on 19 January. I have calculated the rent from 20 January – 9 February 2023 as $1500, and the amount paid as $1000 plus the $178.57 credit. The amount ordered is proved.
How much is owed for water rates?
- The landlord has claimed two lots of water rates during the tenancy. The tenant agreed to pay the first lot of rates to 21 December 2023, but not the second lot of rates to the end of the tenancy because of the leaks at the premises. I find this is a reasonable submission. Even though the amount billed is not high, there is no way of knowing how low the water rates usage would have been without the leak. The claim for the water rates to 24 March is dismissed.
Should the tenant get compensation?
- The tenant submitted he should get compensation because the previous adjudicator asked the parties to arrange the bond refund between themselves and this was not done. I find I do not have the jurisdiction to make orders about disputes between a landlord and a tenant for delays after the end of the tenancy. This claim is dismissed. Other orders
- Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.
- Both parties are entitled to some of the bond. I have sent a request for the refund to the Bond Centre.
- Neither party has applied for name suppression, but I have considered it anyway. The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. See section 95A RTA.
- I find I should exercise my discretion here and allow suppression for both parties. There has been no intentional breach of the RTA so there is no public interest in the parties being named.