What was the outcome of Tenancy Tribunal case 4607549?

The tribunal order states: No name suppression orders apply around publication of this decision.

How much money was awarded in case 4607549?

Compensation: $1,500.00 awarded to tenant; Rent Arrears: $1,459.00 awarded to landlord; Water Rates: $153.85 awarded to landlord

What type of tenancy dispute was case 4607549?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4607549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9308914-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4607549?

The tribunal order states: No name suppression orders apply around publication of this decision.

How much money was awarded in case 4607549?

Compensation: $1,500.00 awarded to tenant; Rent Arrears: $1,459.00 awarded to landlord; Water Rates: $153.85 awarded to landlord

What type of tenancy dispute was case 4607549?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4607549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9308914-Tribunal_Order.pdf.

280 Sunset Road, Windsor Park, Auckland 0632 Tenancy Tribunal Case 4607549 — Rent arrears

Claims and awards in Tenancy Tribunal application 4607549 — net $112.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 6 August 2023	$1,459.00		Rent arrears to 6 August 2023
Water rates	$153.85		Water rates
Compensation for landlord breaches		$1,500.00	Compensation for landlord breaches
Total award	$1,612.85	$1,500.00
Net award	$112.85
Total payable by Tenant to Landlord	$112.85

Claims and awards in Tenancy Tribunal application 4607549 — net $112.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 6 August 2023	$1,459.00		Rent arrears to 6 August 2023
Water rates	$153.85		Water rates
Compensation for landlord breaches		$1,500.00	Compensation for landlord breaches
Total award	$1,612.85	$1,500.00
Net award	$112.85
Total payable by Tenant to Landlord	$112.85

Order

No name suppression orders apply around publication of this decision.
Krystle William Mellisa Davidson must pay Happy Fish Limited $112.85 immediately, calculated as shown in table below:
The landlord must carry out the following work to the premises, which must be completed by 8 September 2023: a. Have the hot water cylinder assessed by a registered plumber with the tenant or another person on her behalf present to determine the cause of the leaking from the hot water cylinder onto the roof and to complete any necessary repair to stop the leaking if found.
As an alternative to compliance with Order 2, the landlord must pay the tenant $500.00 immediately after 8 September 2023.
If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $500.00. These costs may be set off against rent payable.
The landlord’s application for compensation for tenant breaches is dismissed.
The tenant’s application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing which I held at North Shore on 4 August 2023. Mr Mathews represented the landlord.
I adjourned the hearing and issued a directions order with a timetable for the parties to provide further evidence and submissions.
I confirmed that I have viewed the video evidence that landlord provided showing an inspection he conducted on 7 July 2023, and I have received the tenant’s written submissions addressing the further evidence. Background
The tenant has applied for compensation and/or exemplary damages for alleged breaches by the landlord including breaches of the Healthy Homes Standards (HHS); a failure to provide the premises in a reasonable state of cleanliness; a failure to provide smoke alarms; and a failure to maintain and repair the premises.
The landlord has applied for rent arrears, water rates, and compensation for alleged breaches by the tenant.
In addition to the further evidence and submissions the parties provided after the hearing, each provided documentary evidence at the hearing. I have taken all evidence and submissions into account in reaching my decision.
This tenancy is actually a sub-tenancy. The landlord rents the premises from another landlord; he is a tenant under that agreement. As a sub-landlord, he rents the premises to this tenant. I will refer to Happy Fish Limited and Mr Mathews as the landlord.
The premises are due for demolition. The landlord produced evidence that shows consent has been given for the demolition. The consent is time framed.
The tenancy started on 24 April 2023. It is a periodic tenancy.
In the adjournment order I issued after the hearing, I recorded that the landlord is prepared to release the tenant from the tenancy at any time, without 28 days’ notice, though she must give written notice of termination. That is important for reasons I will address later.
The tenancy agreement provided that the tenant was responsible for repairs beyond necessary repairs. I will return to that later as well. Issues
The issues to be determined by the Tribunal are these: •Has the landlord proved a claim for rent arrears and water rates? •Has the landlord proved any breaches by the tenant? If so, should the

Tribunal award compensation?

•Has the tenant proved that the landlord has committed any unlawful acts, including non-compliance with the HHS and a failure to provide smoke alarms? •Did the landlord fail to provide the premises in a state of reasonable cleanliness? •Has the landlord breached the tenant’s quiet enjoyment? •Had the landlord failed to undertake repairs? If so, how should the Tribunal address that?

Has the landlord proved a claim for rent arrears and water rates?

The landlord provided a rent summary. He seeks rent arrears of $2,759.00 to 6 August 2023. That amount includes 2 weeks’ rent in advance that the tenant has not paid.
The rent is $650.00 per week. The amount due by the tenant (leaving aside the requirement to pay 2 weeks’ rent in advance) is $9,750.00
The landlord agreed to reduce the rent to $580.00 for a 4-week period. He also agreed to waive 2 weeks’ rent. The tenant has paid $6,711.00. The amount of rent I find proved to be owed as at 6 August 2023 is $1,459.00.
Both parties gave different evidence about the reasons for the 2-week rent waiver and the period of the rent reduction. The tenant claims that the rent reduction was meant to be permanent, and the tenancy agreement was meant to be amended to reflect that.
The evidence does not establish a permanent rent reduction to $580.00. Nor does it establish a rent waiver of more than 2 weeks.
The tenant agreed that she had not paid 2 weeks’ rent in advance since she had to use that money to live elsewhere while the premises were meth tested and the results obtained.
I make no order for the tenant to pay an additional 2 weeks’ rent in advance. It is probable that the tenancy will not continue. An order would serve little purpose because the landlord has agreed to release the tenant without notice. If she were to pay 2 weeks’ rent in advance now, that might result in an overpayment of rent were she to suddenly end the tenancy as she now can do.
The landlord claimed water rates of $225.85. That claim was incorrect. A landlord cannot claim the fixed rate charges that apply to water rates. I find the amount due by the tenant is $153.85 only after the deduction of the fixed charges.
The tenant claims that there are water leaks that have increased the water charges. She did not produce evidence to persuade the Tribunal that the water rates should be reduced. Has the landlord proved any breaches by the tenant? If so, should the

Tribunal award compensation?

The landlord claimed that the tenant provided false references; that she refused entry for a notified inspection on 13 June 2023; that she smoked marijuana; and that by not paying rent and water rates she breached her responsibilities as a tenant. The landlord also alleges that the tenant failed to notify damage.
I find none of these allegations proved. The landlord has made assumptions about the tenant’s references and her drug use. The tenant explained why she did not allow the inspection to go ahead immediately; she had just woken and asked the landlord to wait for 10 minutes.
I do not accept that the tenant failed to notify damage.
The rent and water rates issues have been dealt with separately; they are not matters that can attract an award of compensation. Has the tenant proved that the landlord has committed any unlawful acts, including non-compliance with the HHS and a failure to provide smoke alarms?
These premises did not have to comply with the HHS because they are to be demolished. The exemption provided under the Residential Tenancies Act 1986 (RTA) is time limited, so the landlord is on notice that the demolition date set cannot be relied on beyond the period of exemption.
Given the landlord’s evidence about the consent to demolish, I do not find that the landlord committed any unlawful act.
Nor do I find that the landlord failed to supply smoke alarms. The tenant gave evidence that there were no smoke alarms. But the landlord’s video shows that there were smoke alarm brackets with the alarms removed. He mentions in particular a recently installed alarm being missing. And he states to the tenant’s friend who was present at the inspection that he has arranged for someone to attend to reinstate all the smoke alarms.
I do not find that the landlord failed to comply with the obligation to provide smoke alarms at the premises. I find it probable that he did. Did the landlord fail to provide the premises in a state of reasonable cleanliness?
I find that the landlord failed to provide the premises in a reasonable state of cleanliness. The basement area was and is full of rubbish. The tenant was provided compensation in the form of rent relief for cleaning work that was required at the start of the premises. She states that the mould in the premises has caused or worsened her skin condition.
The landlord said that the tenant had never asked him to remove the rubbish under the house. She was not required to. The landlord’s responsibility was to ensure the premises were provided in a reasonable state of cleanliness; that encompasses rubbish removal. The tenant was also entitled to use that space free from rubbish and junk.
The landlord agreed at the hearing that the tenants photos showed the presence of mould. In his video, he made repeated comments that there was no mould or ‘only a little bit’.
That the premises are to be demolished does not relieve the landlord of his statutory responsibilities. So, the clause stating that any repairs are the tenant’s responsibility other than ‘necessary repairs’ has no legal force. The tenant was not responsible for any repairs unless caused by her careless or intentional damage.
I find that landlord committed breaches of his responsibilities by not providing the premises in a state of reasonable cleanliness, including the removal of the considerable amount of rubbish from the basement.
However, these breaches are not ones that I find reach the threshold for exemplary damages. To establish that, the tenant needs to prove that the landlord acted intentionally.
I find that the landlord was negligent but did not act with intent. He repeatedly said at the hearing that he was not fully aware of his responsibilities under the RTA and was on a steep learning curve.
As compensation for the landlord’s breaches, I award the tenant compensation of $1,500.00. Has the landlord breached the tenant’s quiet enjoyment?
I do not find that the landlord breached the tenant’s quiet enjoyment. When a tenant asks for repairs to be done there must be some give and take. That the landlord came to do repairs without notice as the tenant alleges when she was at work did not cause her any loss. Has the landlord failed to undertake repairs? If so, how should the

Tribunal address that?

The repair issues noted by the tenant were numerous. Many of the matters would constitute a breach of the HHS if they applied to this tenancy, but they do not.
The premises are due for demolition, consent having been given under the Resource Management Act 1991 by Auckland Council on 18 January 2022.
The HHS compliance date for this tenancy was 90 days after it started on 24 April 2023, so 24 July 2023. The HHS exemption is only for 12 months from that date.
Where the Tribunal finds that the landlord has failed to comply with its repair obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) 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.
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) RTA.
I am not prepared to make work orders for all the matters raised by the tenant given the pending demolition of the property.
However, one issue arose from the video inspection the landlord provided. The person who was present with the landlord noted that the hot water cylinder leaks onto the roof. The landlord appeared to dismiss that, noting that there was no leaking inside.
If the cylinder leaks onto the roof, that in turn could result in higher electricity costs.
I have made a work order for the landlord to have the hot water cylinder checked by a plumber with the tenant, or someone she nominates, present to explain the problem.
I have made consequential orders should the landlord not comply.
The landlord said that a part for the log burner was due to arrive and the log burner should be fixed soon. I have not extended the work order to that because the landlord has an exemption from the HHS as I have noted. The Tribunal’s expectation is that the log burner be made operational.
If the tenancy has ended by notice or is due to end by notice already given by the tenant, the work order will not apply and need not be complied with. Result
The landlord will pay the tenant compensation of $1,500.00 for its failure to provide the premises in a reasonably clean state with all rubbish removed.
The tenant will pay the landlord rent arrears and water rates totalling $1,612.85
Off-setting one against the other, the tenant will therefore pay the landlord $112.85.
No order is made for reimbursement of the filing fees each party paid. Both applications are only partly successful. As award to one would be offset by an award to the other.
As neither application is fully or mostly successful, I make no orders for name suppression.

Tenancy Tribunal case 4607549 — Rent arrears at 280 Sunset Road, Windsor Park, Auckland 0632

At a glance

Tenancy Tribunal case 4607549 — Rent arrears at 280 Sunset Road, Windsor Park, Auckland 0632

At a glance

Award balance

Claims & awards

Order

Reasons

Tribunal award compensation?

Has the landlord proved a claim for rent arrears and water rates?

Tribunal award compensation?

Tribunal address that?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Tribunal award compensation?

Has the landlord proved a claim for rent arrears and water rates?

Tribunal award compensation?

Tribunal address that?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions