What was Tenancy Tribunal case 4614074 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 4614074?

Property Damage: $300.00 awarded to tenant; Property Damage: $1,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $13,882.15 awarded to landlord; Leak Detection: $1,404.54 awarded to landlord; Subletting: $10,000.00 awarded to landlord

What type of tenancy dispute was case 4614074?

The primary dispute was Rent arrears. Related themes: Leaks, Exemplary damages.

Where can I read the official tribunal order for case 4614074?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10453392-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4614074 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 4614074?

Property Damage: $300.00 awarded to tenant; Property Damage: $1,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $13,882.15 awarded to landlord; Leak Detection: $1,404.54 awarded to landlord; Subletting: $10,000.00 awarded to landlord

What type of tenancy dispute was case 4614074?

The primary dispute was Rent arrears. Related themes: Leaks, Exemplary damages.

Where can I read the official tribunal order for case 4614074?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10453392-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4614074 — Rent arrears

Claims and awards in Tenancy Tribunal application 4614074 — net $22,347.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$13,882.15		Rent arrears
Subletting	$10,000.00		Subletting
Repairs: Leak detection	$1,404.54		Repairs: Leak detection
Exemplary damages	$1,000.00		Exemplary damages
Filing fee reimbursement	$20.44		Filing fee reimbursement
Compensation: Failure to repair dishwasher		$300.00	Failure to repair dishwasher
Total award	$26,307.13	$300.00
Net award	$22,347.13
Total payable by Tenant to Landlord	$22,347.13

Claims and awards in Tenancy Tribunal application 4614074 — net $22,347.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$13,882.15		Rent arrears
Subletting	$10,000.00		Subletting
Repairs: Leak detection	$1,404.54		Repairs: Leak detection
Exemplary damages	$1,000.00		Exemplary damages
Filing fee reimbursement	$20.44		Filing fee reimbursement
Compensation: Failure to repair dishwasher		$300.00	Failure to repair dishwasher
Total award	$26,307.13	$300.00
Net award	$22,347.13
Total payable by Tenant to Landlord	$22,347.13

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name [and Tenant’s name] and identifying details.
[The tenant/s] must pay [The landlord/s] $22,347.13 immediately, being rent arrears to 7 September 2023.
The Bond Centre is to pay the bond of $3,660.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended the hearing. The Tenant attended by telephone and the Landlord attended in person with his representative [The landlord's representative].
The landlord has applied for rent arrears, compensation, exemplary damages, refund of the bond and reimbursement of the filing fee.
The Tenant has applied for work orders, breach of Healthy Homes standards, compensation, reimbursement of the filing fee. Background
The Landlord purchased the property in August 2022. The Tenancy commenced on 1 October 2022 and was fixed to 30 September 2023. The Tenant vacated on 25 June 2023.

LANDLORDS CLAIMS

Rent arrears

The Landlord claimed rent arrears of $13,882.15 and provided a rent summary. Email correspondence between the Mediator and Landlord confirming the correct adjusted rent from 3 November 2022 was provided and a statement from the Property Manager confirming the rent for the first month was waived due to methamphetamine contamination of one bedroom discovered on 14 October 2022.
The Tenant disputed the rent arrears stating that the parties agreed at mediation that the rent would reduce from $1100.00 to $915.00 per week until a garage was built. The rent summary however indicated periods where the Tenant did not pay any rent at all.
In considering the evidence, I find the Landlord’s rent summary proves the amount outstanding. The Tenant did not provide any evidence to show that they had paid amounts which were not accounted for in the rent summary.
The amounts ordered are proved. Compensation- Tenant subletting
The Landlord claimed $17,800.00 because the Tenant without the Landlord’s consent, rented out the back shed for $200.00 per night from 1 December 2022 to 28 May 2023. The Landlord estimated the total profit the Tenant would have made was $33,000.00 however did not claim the full amount.
The Tenant agreed they did sub-let the shed but assumed the Landlord knew and gave consent because they never asked them to discontinue. Advertisements from the website ‘Booking.com’ were provided which the Tenant had listed.
The Landlord discovered the Tenant was sub-letting around May 2023, through contractors they had appointed to repair a water leakage problem on the property. The Landlord claimed they never consented to sub-letting and it was specifically prohibited at clause 4(1) in the Tenancy Agreement. This stated: “The Tenant(s) shall not assign sub-let or part with any possession or chattels belonging to the property during the term of the tenancy.”
Furthermore, the Landlord submitted a statement dated 3 September 2023 from their Property Manager, [The property manager/s], confirming the Tenant was advised by her that the shed was only meant to be used as an office or studio and not for renting out.
The Landlord referred to negative feedback received from previous renters of the property which indicated the property was not lawful. On 9 February 2023, one reviewer stated their son was a builder who attended the property and noted “the cottage is not certified work”. The Landlord submitted the Tenant was fully aware that she was breaching yet continued to place everyone’s health and safety at risk by sub-letting and placing a strain on the use of the property.
The Tenant submitted that the Landlord knew she was sub-letting through the Property Manager who came over to the property. The Tenant was also aware the shed had been rented out prior to the Tenant moving in. She submitted that if the Landlord did not want the Tenant to continue sub-letting, they should have told her not to. When asked if the Tenant ever obtained written consent for the sub-letting, the Tenant advised they did not. They had also stated that they had rented out properties in the past as well. The law
Section 44 of the Residential Tenancies Act 1986 (“RTA”) states the following: (1)There may be included in a tenancy agreement a provision that expressly and unconditionally prohibits the tenant from subletting or parting with possession of the premises during the term of the tenancy. (2) In the absence of such a provision, the tenant may at any time during the tenancy sublet or otherwise part with possession of the premises with the prior written consent of the landlord and in accordance with any conditions attached to that consent by the landlord. (2A)A tenant commits an unlawful act if he or she sublets or otherwise parts with possession of the premises— (a)in contravention of a provision of the kind described in subsection (1); or (b)in any other case, without the prior written consent of the landlord.
In considering the evidence, the Tenant did not obtain written consent of the Landlord prior to sub-letting the property and sub-letting was prohibited by the Tenancy Agreement. In addition to this, I do not accept the Tenant’s submission that the Landlord knew because the Property Manager would have attended the property and viewed it. The Tenant gave evidence that she had previously rented out her own properties so she ought to have been aware that written consent was required. She also signed the Tenancy agreement that specifically banned it. When she attended mediation in December 2022, she would have been renting the shed out at that stage, yet it was not brought to the Landlords attention. This would have been relevant to the issue of rent reduction yet the Orders makes no reference to it which appears intentional by the Tenant. For these reasons, I find the Tenant sub-let the shed without consent.
The Landlord has not provided any evidence of the exact profits made by the Tenant in subletting. It is uncertain whether the Tenant rented it out every night and there is no evidence to support the profit made was approximately $33,000.00. For this reason, I find an award of $10,000.00 appropriate to award to compensate for the damage. Compensation for water leakage
The Landlord claimed $1404.54 for repairs required to fix the water leakage on the property due to the Tenants illegal use of the shed. On 22 March 2023, the Landlord sent Plumbers to the property to investigate a leak in response to a notification of the Tenant. The Plumbers replaced the clogged filters and found there was no leak detected in the main house. On 28 March 2023, the leak was discovered to be near the shed.
The tenancy specified only two people were consented to reside at the property. Because of the multiple guests using the shed, the property’s septic tank had to be filled frequently and the plumbing system was not equipped for large capacity useage.
The Landlord provided email evidence from a Senior Plumber, [The plumber], dated 24 June 2023 who attended the property. [The plumber] confirmed the most probable reason for the leak originated from the leak/cottage area and the renting out of the property to multiple individuals would have exacerbated the issue. The Landlord also provided a report from [The plumbing company] confirming the issues with the plumbing and septic tank use if there were multiple users of the property.
The Tenant disputed this claim stating the leak was due to an issue affected by the pipe running from the pool house to the kitchen of the main house. The issue was not caused by the useage of the shed. Photographs were provided of a pipe running from the pool area and a hole in the grass.
In considering the evidence, the Landlord provided evidence from two professionals who confirmed the leak in the shed was due to the Tenant sub- letting the premises. The Tenant claimed it was caused by a leak in the house however did not provide evidence from a Trades person or professional to verify this.
The amount’s ordered are proved. Exemplary damages- sub-letting the property
[The landlord/s] claims the tenant has sublet or parted with possession of the premises without their prior written consent.
In the absence of a specific provision in the tenancy agreement prohibiting subletting or parting of possession of the tenancy, a tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably. See section 44(2) and (3) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A Residential Tenancies Act 1986.
The Tenant, [The tenant/s], rented the property without the prior written consent of the landlord. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
It was submitted the Tenant acted intentionally in sub-letting the property. They listed the shed to rent on various websites from December 2022 and deposed that the Landlord was aware but failed to ask them to stop doing so. They were also told by the Landlord that the shed only had consent as storage or as an office.
As a result of renting out the shed, this caused substantial damage to the property because the useage exceeded the capacity. The water tank had to be repeatedly filled and the effect of the damage was considerably stressful for the Owner to the point he had to travel overseas to manage his stress.
The Landlord also submitted the constant financial stress in dealing with the Tenant’s requests for repairs and the ongoing leakage problems caused both himself and his wife to miscarriage. A medical certificate was provided.
The effect of this unlawful act on the Tenant, was that they benefitted financially from the rent collected.
It is in the public interest that Tenants should obtain consent from the Landlord regarding who they sub-let to so that the Landlord can ensure the property is lawful and there is oversight as to who they are letting their property to. The Landlord was not given this opportunity in this case. The result being they had to pay a substantial bill for the water leakage. The Landlord was also concerned that the property was fit to be rented out which placed the health and safety of the renters at risk.
In considering the evidence, I find the Landlord intentionally sub-let the property and acted unlawfully. The Tenant did not dispute this but mistakenly assumed the Landlord gave consent. The Landlord suffered damage to the property as a result of the Tenant not obtaining consent.
I find the appropriate amount to award in this instance is $1000.00.
The amounts ordered are proved.

TENANTS CLAIMS

Work Orders

The Tenant claimed for Work Orders but withdrew these as the tenancy had ended. Breach of Healthy Home Standards
The Tenant claimed for Breach of Healthy Home Standards, specifically in relation to the water leak, lack of water for five weeks in March 2023 and failure to drain the septic tanks.
On 22 February 2023, the Tenant contacted the Landlord regarding the lack of water. Whilst they could access water by walking outside every time to turn on the tap, the water was not readily available inside the house. There was also an issue with the water pump running all day and the pool had cracks.
On 3 April 2023, the Landlord sent a Plumber to fix these issues and fill the water tank. In May 2023, the Plumbers considered the initial leakage was between the pumphouse to the mainhouse however further investigations indicate it originated near the shed area. This was confirmed in the Plumbers invoices.
On 27 January 2023, after the Auckland flooding event, the septic tank kept overfilling and the Landlord failed to empty these in a timely manner. The Tenant had to wait until March 2023 for this issue to resolve whilst the stench of sewer water was overwhelming and there was sewerage waste everywhere.
The Landlord deposed the leakage was due to the sub-letting of the property placing pressure on the shed facilities which was confirmed in the Plumbers invoice. They also had the property assessed by [The property assessment company] in September 2022, before the Tenants moved in to identify and repair all leaks. Invoices were provided from [The property assessment company] which prove the work conducted to bring the property up to Healthy Home standards. The leaks were repaired on 28 September 2022 and all gutters were intact and functional. The Landlord deposed the issue of the septic tanks overfilling was out of their control because the demand for Plumbers was high after the Auckland weather event.
Compliance dates for the HHS vary depending on the tenancy but for a private rental such as here it must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024.
In considering the evidence, I find this property was not in breach of Healthy Home Standards in terms of the leakage based on the evidence from [The property assessment company], the evidence from the Plumbers confirming it was caused by the Tenant renting out of the shed and the unavailability of Plumbers to drain the septic tank after the Auckland weather event.
The claim is dismissed. Failure to maintain
The Tenant claimed that the Landlord failed to maintain the property for a number of reasons.
The Tenant discovered a leak in the garage in November 2022. The Landlord sent a Builder to repair this however the Builder had to make a whole new garage off site over a period of 6 weeks. This meant the Tenant had no garage to store her race cars in. The Landlord agreed to compensate the Tenant by paying for the storage fees for her car.
The Landlord submitted they reduced the Tenant’s rent to compensate for the leak in the garage. This was agreed to at Mediation in December 2022. The Landlord submitted that despite agreeing to pay for the storage which they submit was not a legitimate storage facility, the Tenant used the garage to store her car because the flooding was minimal.
The Tenant claimed that the dishwasher was not working because the bottom tray would not drain. They initially notified the Landlord on 14 October 2022. They were advised a tradesperson would attend in December 2022 and then March 2023 but nobody ever came.
The Tenant submitted this was raised in a 14 day notice to remedy which was given to the Landlord around December 2022. The Tenant provided email correspondence from the Landlord confirming on two occasions the Landlord promised to send someone to fix the dishwasher. By March 2023 the dishwasher still not been repaired.
The Landlord submitted there were no issues with the dishwasher indicated by the [The property assessment company] report before the Tenant moved in. She cannot recall being notified by the Tenant that there were issues with this and there had been a miscommunication somewhere. The Landlord indicated that they inspected the property after the Tenant moved out and the dishwasher was in good working order. Photographs were provided of the dishwasher at that time.
The Tenant claimed the pool had leaks in it so they had to fill it every two days. They notified the Landlord on the 10 January 2023 but the Landlord failed to act. The Tenant provided photographs of the pool however the cracked surfaces were not identified.
The Landlord submitted that there were cracks in the pool and but there was no leakage identified by the [The property assessment company] report. They provided photographs of what they submitted were the surface cracks in the pool which did not cause any leaks. They also provided an independent report from [The plumbing company] which confirmed the surface cracks were cosmetic.
Section 45 of RTA states that a Landlord must provide and maintain a premises in a reasonable state of repair.
In considering the evidence for the dishwasher claim, there was a delay in the timeliness to repair the dishwasher. The correspondence indicates the Landlord took months to take action. I find it appropriate in this instance to award the Tenant a global amount of $300.00 for failure to repair the dishwasher.
In considering the evidence for the garage claim, while there was a leak in the garage, the Tenant has already been compensated for this issue through the agreement at mediation. The rent reduction has taken this into account.
The claim is dismissed.
In considering the evidence for the pool leakage, the Tenant did not provide any independent evidence to prove that the pool was leaking and the cracks were causing this. There was no independent expert evidence and only photographs of what appeared to be cracked surfaces.
The claim is dismissed. Unlawful entry by Landlord
The Tenant submitted the Landlord entered the property without her consent. On 27 January 2023, the Tenant saw a man walking around the property at
30pm whilst it was raining. They came into the front of the house whilst she was eating dinner and appeared to be around 40 years of age. The Tenant notified the Landlord and asked if the Landlord could provide notice next time.
The Landlord submitted it was not the owner who attended the property on 27 January 2023. The Owner always notified the Landlord before they attended the property and this was confirmed in a statement from the Property Manager. The only time the owner entered the property was in January 2023 and June 2023 accompanied by the Property Managers. Text messages were provided notifying the Tenant of these times.
Section 48 of RTA stipulates when a Landlord can enter the premises which include in an emergency, with the consent of the Tenant, if they have provided 24 hours notice for repairs etc.
In considering the evidence, there was no photographic or third party evidence to prove the Owner or the Landlord unlawfully entered the property on 27 January 2023.
The claim is dismissed. Requiring more than 4 weeks rent in bond
The Tenant submitted the Landlord requested more than four weeks rent for the bond. The Tenant had to request the overpayment and received $740.00 in March 2023. If she had not requested it, the Landlord would never have asked Bond Services to refund the amount back to her.
The Landlord refunded this back to the Tenant after mediation.
A landlord must not require a bond of greater than four weeks rent. See section 18(1) Residential Tenancies Act 1986.
In considering the evidence, this request appeared to be an oversight by the Landlord and the Tenant did not outline how this impacted her in order to claim some sort of compensation. The overpaid bond was refunded to her.
The claim is dismissed. Compensation for storage of cars
The Tenant claimed $10,000.00 in compensation for having to store her cars in a storage facility and for the time and costs to travel to the storage facility. She rented the property partly because it had a double garage to store her race cars.
This issue was resolved at mediation where it was agreed in lieu of a garage, the Landlord would charge reduced rent to take into account the storage fees.
The claim is dismissed. Failure to provide insurance information
The Tenant claimed they asked the Landlord for insurance information in October 2022 and never received it.
The Landlord submitted they were never asked and the Tenant did not provide evidence of this request.
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986
In considering the evidence, I find there was no evidence of the Tenant requesting this. The claim is dismissed. Retaliatory termination and Landlord giving notice of termination without grounds
The Tenant claimed the Landlord attempted retaliatory termination by pressuring her to vacate in March 2023 and the Landlord did not have grounds to terminate the tenancy.
The Landlord disputed this advising that because his family were relocating from overseas, the Tenant was offered an option to move out in six weeks time if they wanted to. He denied pressuring her to end the tenancy and did not provide any notice to end the tenancy.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986
In considering the evidence, this is not considered retaliatory termination as the Landlord did not terminate the tenancy. The Landlord was merely making an offer to end the tenancy early.
The claim is dismissed. Landlord interfering with supply of services
The Tenant claims the Landlord interfered with the supply of water and septic tank drainage because they failed to fix the leak damages in a timely manner. The Tenant was told by the Landlord that the Owner refused to pay for the repairs.
The Landlord claimed they responded reasonably and in a timely manner to notifications for repairs. They did not interfere with the supply of services.
A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.
In considering the evidence and claim, the Landlord did not interfere with the supply of services. The Tenant is attempting to claim twice under the failure to maintain the property in a reasonable state of repair.
The claim is dismissed. Breach of quiet enjoyment
The Tenant claimed the Landlord breached their quiet enjoyment because there was a constant barrage of tradespersons coming to the property since she moved in. There were people there for methamphetamine testing, repairs, carpet layers, plumbers and septic tank people. They would attend as late as
00pm.
The Landlord submitted they were there to ensure the property was maintained to a reasonable state of repair and the Tenant has to give fair access. If the Tenant did not want too many people visiting the property, why did she rent out the shed which would potentially attract new visitors every night.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
In considering the evidence, the Tradespersons were present because there were multiple ongoing issues which the Tenant had made notifications about. The Landlord had always advised the Tenant of their attendance and the tenant could partly negotiate their times. The Landlord had to fulfil their obligations in a timely manner otherwise the Tenant could complain about inaction. I consider the Tradespersons were not a breach of her quiet enjoyment.
The claim is dismissed. Failure to give notice of change of Landlord
The Tenant claimed the Landlord failed to advise that there was a change of Landlord from the previous Property Manager [The property manager/s] to the Owner. When the Tenant sent an email to the Landlord seeking to end the Tenancy on 2 May 2023, [The property manager/s] replied. Then she resigned from her role.
The Landlord advised that a notice was given to the Tenant that the Owner would be managing the property from 4 May 2023 onwards. The Owner’s sister replied to the Tenant when the Owner did not respond. Correspondence was provided from the Landlord stating the change in management from [The property manager/s] to the owner.
In considering the evidence, I find the Tenant did not provide evidence that she attempted to contact the Landlord and the Landlord had changed. There was evidence notifying the Tenant of the Owner taking over management of the property but nothing to suggest that there was no new Landlord to contact.
For these reasons the claim is dismissed. Failure to provide a separate electricity meter
The Tenant claimed $10,000.00 for the Landlord failing to provide a separate electricity meter for their dwelling. There was a neighbouring dwelling which did not have its own meter so they shared the electricity. The Tenant had the power in their name for both their properties. The useage had to be calculated between the two properties each time. The Tenant did not provide invoices to prove how much they had paid in total.
The Landlord submitted she agreed to this arrangement for paying the electricity at the start of the tenancy.
Section 39 of RTA provides that 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: (a) electricity and gas:
In considering the evidence, there was no separate meter measuring the useage of power at the Tenants property. The Tenant is only liable to pay electricity for what was exclusively attributable to her property and if the meter she was provided with did not measure this amount, then she was not liable to pay. The Tenant did not provide electricity invoices to prove the amount she had paid so far. No amount is awarded for this reason.
As the Landlord has been substantially successful, name suppression is granted and the Tenant shall reimburse the filing fee.
The Tenant has not sought name suppression so this has not been granted.
It is noted that the parties subsequently reached agreement by consent and name suppression is also granted to the Tenant.

Tenancy Tribunal case 4614074 — Rent arrears

At a glance

Tenancy Tribunal case 4614074 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions