What was Tenancy Tribunal case 4575879 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 4575879?

Filing Fee: $20.44 awarded to tenant; Rent Refund For Period 10.2.23 To 16…: $460.00 awarded to tenant; Water Rates: $92.17 awarded to landlord

What type of tenancy dispute was case 4575879?

The dispute type was not classified.

Where can I read the official tribunal order for case 4575879?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9314223-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4575879 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 4575879?

Filing Fee: $20.44 awarded to tenant; Rent Refund For Period 10.2.23 To 16…: $460.00 awarded to tenant; Water Rates: $92.17 awarded to landlord

What type of tenancy dispute was case 4575879?

The dispute type was not classified.

Where can I read the official tribunal order for case 4575879?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9314223-Tribunal_Order_Redacted.pdf.

Unit/Flat 6, 130 Great South Road, Epsom, Auckland 1051 Tenancy Tribunal Case 4575879 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4575879 — net $388.27 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$92.17		Water rates
Rent refund for period 10.2.23 to 16.2.23		$460.00	Rent refund for period 10.2.23 to 16.2.23
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$92.17	$480.44
Net award		$388.27
Bond		$3,680.00
Total payable by Landlord to Tenant		$388.27

Claims and awards in Tenancy Tribunal application 4575879 — net $388.27 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$92.17		Water rates
Rent refund for period 10.2.23 to 16.2.23		$460.00	Rent refund for period 10.2.23 to 16.2.23
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$92.17	$480.44
Net award		$388.27
Bond		$3,680.00
Total payable by Landlord to Tenant		$388.27

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Jcmc Rental Realty Limited T/A Aj Stevenson must pay [The tenant/s] $388.27 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $3,680.00 to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. The tenant was assisted by the court appointed Mandarin interpreter. Background
The tenancy began on 18 November 2022. The tenancy was for a fixed term of 12 months.
The tenancy was affected by the Auckland floods which occurred on 28 January 2023. As a result of the flooding there was considerable damage caused to the downstairs area of the premises.
The tenant and her two young daughters had no option but to move out of the premises on 7 February 2023 and stay with friends.
The tenant was of the understanding that the repairs would only take approximately one month.
The tenant gave email notice to the landlord on 20 February 2023 to end the tenancy. In her email notice the tenant stated that she should be relived of rent from 10 February 2023. Applications
The landlord has applied for rent arrears and water rates.
The tenant has applied for refund of the bond money and release from rent arrears. The tenant’s application: Uninhabitable tenancy
Section 59(1) RTA states: Where, otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), the premises are destroyed, or are so seriously damaged as to be uninhabitable,— (a)the rent shall abate accordingly; and (b)either party may give notice to the other terminating the tenancy.
Section 59(3) RTA states: Where a tenant gives notice of termination under subsection (1), the period of notice shall be not less than 2 days.
Section 59(4) RTA states: Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a)the rent shall abate accordingly; and (b)either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent.
The tenancy consisted of a 3-bedroom two-level townhouse. The downstairs area consisted of a kitchen and dining/living area and a bathroom. The upstairs area consists of 3 bedrooms.
The tenant says that as a result of a severe weather event the lower level was severely damaged.
The flooding caused significant damage to the downstairs area of the townhouse. There was significant damage to the walls which resulted in the gib board having to be removed in the bathroom, laundry, dining room and lounge. There was clear evidence of damage and exposed wires. The photographs provided by the tenant clearly show the unacceptable state of the property. There was gib board on the floor which had been pulled off the walls. Exposed power points and power cables within easy reach. And it was certainly not a safe environment for a tenant with two young children.
Not long after the flood occurred, the tenant and her two daughters left the premises and stayed elsewhere with friends. Although the upper level of the townhouse was not impacted by the flooding, the downstairs area was not only uninhabitable it was also dangerous. The entire carpet had to be disposed of.
The landlord stated during the hearing that it was not until July that the repairs were finished.
The tenant stated that she rented a machine to remove some of the water. She said the machine removed approximately 20 buckets of water from the premises.
Shortly after the flooding the landlord reduced the rent from $920.00 per week to $460.00 per week. This reduction in rent was from 3 February 2023. On 3 February the tenant paid the full rent instead of the reduced amount, thus bringing her rent ledger into credit.
The tenant took photographs of the flood damage on 7 February and 24 February 2023. The downstairs area was in the same condition on both dates and up until the end of the tenancy on 27 March 2023. The damage was obvious and significant.
The tenant says that when she moved out to stay with friends on 7 February, she did so on the basis that the repairs would only take a month or so to complete.
The tenant emailed the landlord on 20 February stating that there had been no reasonable solution to the damaged property and the ability to live there. Even with commercial drying equipment the tenant’s children had been sick. She went on and gave notice that they would need to terminate the tenancy on the basis that the property is not liveable. The tenant requested that she be released from her rent obligations from 10 February on the basis that the situation was unacceptable and the premises uninhabitable. The tenant also stated that the only reason she stayed until 7 February was because she had been advised that the insurance assessor would be attending that day and that someone needed to be there.
Before the Christchurch earthquake sequence in 2010/11, the Tribunal seldom if ever had to decide applications made under section 59 RTA. Despite the scale of the destruction caused by the earthquakes, relatively few applications for termination of tenancies were made.
For some landlords and tenants, the destruction caused by the Auckland flooding events raise similar issues to those that came before the Tribunal after the Christchurch earthquakes.
The first issue for the Tribunal in these cases is whether premises were destroyed, or so seriously damaged (in whole or in part) as to be uninhabitable. The second issue is the degree to which rent should abate.
The RTA does not define the word uninhabitable. But the Tribunal now has the guidance of District Court case law 1 from the cases that were decided on appeal following the earthquakes both as to the meaning of the word uninhabitable and how the issue of rent abatement should be decided. The principles that emerge from the cases are these: •Whether premises are uninhabitable will be decided on a case-by-case basis: there is no statutory definition or test of uninhabitability. •The Tribunal will want to know what damage was caused to the premises by the cyclone event and what effects it has had on the tenant. •In making its finding on uninhabitability, the Tribunal should take a liberal approach. •Uninhabitability should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time. •If services such as water, sewerage and electricity are cut off the premises will probably be considered uninhabitable for the period the services are unavailable. •The Tribunal must have regard to the personal circumstances of the tenants.

Are they young and/or robust and better able to cope with what has happened?

Or are they vulnerable, elderly or a family and less able to cope?

•In some cases, the Tribunal will need to decide whether it would be unreasonable to require the landlord to reinstate the property or to require the tenant to continue with the tenancy even at a reduced rent. 1 First Avenue Property Ltd v Malick DC Christchurch (CIV-2011-009-001539), Watkin v Brazier Property Investment DC C009-hristchurch (CIV-2011-009-001006), Mauger v Kennard Real Estate Ltd DC Christchurch (CIV-2011-001428)

•If the premises are uninhabitable but the tenancy continues, a 50% rent abatement is often considered reasonable, although the individual circumstances of the parties might mean that the Tribunal sets a higher or lower amount by which the rent should abate.

On the evidence presented to the Tribunal in support of both applications I am satisfied that the premises were not destroyed. However, I am satisfied that part of the premises was so seriously damaged as to be uninhabitable. The landlord also accepted during the hearing that the downstairs area was not liveable. The issue is whether the part that was damaged meant that the whole tenancy was uninhabitable.
Taking account of the principles that have emerged from the District Court cases referred to at paragraph 21 the principles particularly relevant to this situation are that the Tribunal should take a liberal approach to whether or not the premises are uninhabitable, the Tribunal must have regard to the personal circumstances of the tenants and whether it would be unreasonable to require the tenant to continue with the tenancy even at a reduced rent.
The personal circumstance of the tenant is that she suffers from allergies which would be exacerbated by the damp conditions.
For the following reasons I consider that the premises were uninhabitable for this tenant are: • The kitchen and dining room/lounge area was seriously damaged by the flooding. • There were young children at the address; • There were exposed electrical wires and building material scattered around the lower level. Panels of gib board had been ripped off the walls; • The tenant’s children suffered health issues resulting from the dampness, which may very well have been aggravated should they continue to live in the tenancy with dampness and/or mould.
I consider it unreasonable that the tenant was expected to continue with the tenancy even at a reduced rent. In the circumstances the tenant was entitled to be released from the tenancy on 10 February 2023 due to unforeseen circumstances. In my view it was an impossible environment for her to live with two young children.
The important elements where the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable: a. The destruction must not be the result of a breach of the tenancy agreement (obvious in the cyclone cases) b. The premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable c. If so, the rent shall abate accordingly d. Either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if satisfied that it would be unreasonable to require the landlord to reinstate the property or to require the tenant to continue with the tenancy even at a reduced rent.
In First Avenue Property Ltd v Malik DC Christchurch (VIC-2011-009-001539) 23 November 2011 the Court said: [12]The Act does not define ‘uninhabitable’ but, in my judgment, a liberal approach should be taken to the interpretation of that word. Every case should be decided on its own facts. It is for the Tribunal to determine just what the damage was that was occasioned by the earthquake, what effect it has had on the tenants, and then to decide whether these premises are so seriously damaged as to be uninhabitable. That, in my judgment, also involves having regard to the personal circumstances of the tenants. For example, young men occupying a flat might be more robust and able to put up with the privations of earthquake damage than, say, a young family with a child who had bronchial problems that are exacerbated by liquefaction dust or even an elderly couple whose mobility is affected by their age. These are circumstances that should be taken into account in deciding whether, in the particular case, premises are so seriously damaged as to be uninhabitable.
I find that a significant portion of the premises were partially destroyed and as a result the landlord’s reduction in rent of 50% was appropriate. Landlord’s application
The landlord claims rent arrears. It is my view that the tenant should be released from the tenancy as at 10 February 2023. The premises in my view were uninhabitable as a result of severe flooding damage and because of this it is unreasonable to expect the tenant to continue with the tenancy even at a reduced rent.
I have carefully considered the landlord’s claim for outstanding rent. In my view the tenant vacated due to necessity. The tenant and her two children were faced with partial destruction of their home and were forced to vacate. I therefore order a return of the rent paid by the tenant for the period 10 February to 16 February 2023.
Accordingly, the landlord’s claim for rent arrears is dismissed.
I allow the landlord’s claim for outstanding water charges.
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4575879 — Tenancy dispute at Unit/Flat 6, 130 Great South Road, Epsom, Auckland 1051

At a glance

Tenancy Tribunal case 4575879 — Tenancy dispute at Unit/Flat 6, 130 Great South Road, Epsom, Auckland 1051

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Are they young and/or robust and better able to cope with what has happened?

Or are they vulnerable, elderly or a family and less able to cope?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Are they young and/or robust and better able to cope with what has happened?

Or are they vulnerable, elderly or a family and less able to cope?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions