What was Tenancy Tribunal case 4582275 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 4582275?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4582275?

The primary dispute was Rent arrears. Related themes: Harassment.

Where can I read the official tribunal order for case 4582275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9311582-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4582275 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 4582275?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4582275?

The primary dispute was Rent arrears. Related themes: Harassment.

Where can I read the official tribunal order for case 4582275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9311582-Tribunal_Order_Redacted.pdf.

Unit/Flat 11, 12-14 Frostbite Place, Ranui, Auckland 0612 Tenancy Tribunal Case 4582275 — Rent arrears

Tenantcheck Insights

Reasons

Both parties attended the hearing.

This tenancy began on 16 September 2022 between the landlord and another tenant. On 6 March 2023 the landlord signed a Change of Tenant form which had been signed by these tenants on 28 February 2023.

The previous tenant had left the tenancy on 9 February 2023.

The landlord claimed that she was forced to sign the Change of Tenant form, but no evidence was produced to establish this. I find that the form signed by the parties is a legal document and therefore the tenancy continues with these tenants.

The landlord applied for termination of the tenancy, rent arrears, water rates and in respect of a breach.

The application for termination was made on the basis that the rent was 21 days in arrears at the date of application and a 14-day notice had been served on the tenant in relation to the rent arrears.

The notice for the breach was served on the tenant by email dated 17 May 2023. The tenant had paid the arrears and by 2 June 2023 was $480.00 in credit for rent. In addition, while the tenant owed rent arrears at the date of application (22 May 2023) it did not amount to 21 days in arrears. Further, at the date of hearing the tenant had cleared all arrears and there was a credit of $227.14 for rent.

The landlord’s application for termination due to the rent arrears is dismissed. As there are no rent arrears owed there is no order for rent arrears and that part of the claim is dismissed.

The landlord referred to a claim in respect of anti-social behaviour.

Section 55A of the Act concerns termination for anti-social behaviour. That section clearly sets out the necessary steps to be taken by the landlord before applying to the Tribunal for termination due to anti-social behaviour.

In summary, the landlord needs to serve the tenant with three notices in relation to three separate occasions of anti-social behaviour in a 90-day period. The notices must clearly describe the specific anti-social behaviour, advise of the date, location and approximate time of the behaviour, state how many other notices have been served in relation to anti-social behaviour and advise the tenant of their right to make an application to the Tribunal challenging the notice.

The landlord produced two notices which were served on the tenant. The first notice dated 31 May 2023 refers to a car parking issue where other tenants have complained. This is not anti-social behaviour. The Act defines anti-social behaviour as: “(a)harassment; or (b)any other act or omission (whether intentional or not), if the act or omission reasonably causes alarm, distress, or nuisance that is more than minor.”

While the issue complained of does not amount to anti-social behaviour the tenant advised that once they became aware they ensured that their visitors parked in either the dedicated the car park for this tenancy or on the roadside.

As the landlord has not complied with the Act in relation to termination for anti- social behaviour that part of her claim is dismissed. Water rates

The remaining issue is in relation to water rates. The landlord claims water rates of $297.87 being owed at the time of hearing.

The statement produced by the landlord shows that the tenant had paid all water rates owed up until 3 April 2023.

An issue that impacts on whether the tenant was advised of the money owed for water rates is the tenant’s email address. At an inspection held on 25 May 2023 the tenant advised the landlord of a new email address and telephone number. I note that the landlord in error continued to use the old email address in communication related to the notice related to parking which was dated 31 May 2023. The law

Section 39 of the Residential Tenancies Act 1986 (“RTA”) is the relevant section with respect to outgoings: (1) The landlord is responsible for all outgoings in respect of the premises that— (a) are incurred whether or not the premises are occupied; and are incurred for common facilities.... (3) The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. (4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises:... (c) supply of water if the water supplier charges for water provided to the premises on the basis of consumption.

The tenants have the obligation to pay for their water usage. However, there is a corresponding implied obligation on a landlord to advise the tenant of the costs clearly and within a reasonable time frame. A tenant must be provided with the actual provider invoices and be able to clearly identify what is their usage. This has been detailed in precedent by the District Court which the Tenancy Tribunal is bound to follow, as discussed below.

Firstly, the case of Braganza v Saia (DC) CIV-2010-004-2024. In respect to the issue of a landlord's obligation to render water accounts promptly, the Judge held: "It is plainly incumbent on a landlord to set out with clarity what it is that he claims is due, as and when it falls due, and, when it comes to water, to provide the bills to the tenant as they fall due, so that the tenant may make any challenge to the supplier that he thinks is appropriate and make arrangements for payment in a timely fashion". 1

Further, the Judge noted that: "If the tenant is to be asked to pay after the event with no opportunity to check the calculation, or to make provision for payment at the time, he is at a manifest disadvantage. It is down to the landlord to provide the detail as it falls due". 2

The earlier case of Judge McElrea in Woollams v Simpson, CIV-2005-004- 1583, DC Auckland, 16 March 2006, is also relevant. In this case, the tenant had been presented at the end of her tenancy, with a claim for water rates for the three years of her tenancy. Judge McElrea stated: “As a result, in my view, there is a requirement on the landlord seeking to rely on any such arrangement in the lease, that accounts be supplied quarterly or at least within a reasonable period such as within a few weeks after the account is due, unless some other arrangement is agreed between the parties. Failure to do that has predictable consequences for any tenant and apparently did have for this tenant. In my view, the implied term which I read into the Act and into this agreement is necessary in order to make the clause a workable one from a commercial point of view, and in order to decide this matter according to the substantial merits and justice of the case.”

In the more recent case of Nordon 3202 Ltd v Shailaja Nair [2018] NZDC 17499, the facts are similar as the landlord failed to charge water rates during the term of the tenancy but presented the tenant with an account at the end. At paragraph 19 Judge Sinclair says: “It is the obligation of the landlord to supply the water rates accounts to the tenant. Furthermore, this obligation cannot be deflected by saying that the tenant was aware of their responsibility to pay such outgoings and/or did not raise the issue.” Findings

In this situation the tenant received the water rates invoices some months after they were due. At issue are the invoices since 3 April 2023.

At the end of the hearing the landlord was to provide evidence that the invoices were sent to the tenant and when they were sent. The landlord has not produced any evidence following the hearing so there is no evidence that the tenant was sent the water invoices within a reasonable time frame.

Due to a lack of evidence the landlord’s claim for water rates is dismissed.

The landlord is reminded that when she seeks to produce documents at the hearing, she must provide a copy for both the Adjudicator and the tenant. It is 1 Paragraph 15 2 Paragraph 16 not acceptable for the landlord to say that she was not aware because she does not often attend Tribunal hearings.

As the landlord was not successful with their applications I have suppressed the names of the tenants.