What was the outcome of Tenancy Tribunal case 4614730?

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

How much money was awarded in case 4614730?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4614730?

The primary dispute was 14-day notice. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Compensation.

Where can I read the official tribunal order for case 4614730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9408048-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4614730?

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

How much money was awarded in case 4614730?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4614730?

The primary dispute was 14-day notice. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Compensation.

Where can I read the official tribunal order for case 4614730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9408048-Tenancy_Tribunal_Order.pdf.

5 Spinella Drive, Bayview, Auckland 0629 Tenancy Tribunal Case 4614730 — 14-day notice

Order

No suppression orders apply around publication of this decision.
Shiu Swamy must pay John Robert Lynne $500.00 immediately, being compensation for a leaking conservatory.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). The tenants claim is in relation to water leaks and mould at the premises, and also a claim that the termination notice given by the landlord was retaliatory.
The tenant’s position is that during the course of the tenancy, the garage would leak which resulted in flooding and damage to belongings stored inside. The tenant also describes a leak to the conservatory, with mould arising from that leak. As will be set out for the below, the landlord disputes that the garage would flood, or that there were the problems in the conservatory and states that the first time the tenant raised these issues was following the Auckland floods on 27 January 2023. The landlord also considers that any water ingress into the garage would be a result of modifications made by the tenant to the gutter and downpipe system.
The landlord gave a notice terminating the tenancy on the basis that the landlord’s son was to move into the premises. The tenant considers that was not a genuine notice, but issued in response to the complaints from the tenant, and furthermore that the son has not moved in. The landlord disputes that is the case, advising that their son has moved in, not long after the tenant moved out.
What is clear, is that the relationship between the parties has broken down considerably. The parties do not agree on very much now, and significant accusations are made against one another. The tenant sought assistance from and advocate and legal representation during the hearing, and the landlord appointed a property manager to take over managing the Tenancy.

BACKGROUND

The tenancy agreement records the landlord as Shiu Swamy and the tenant as John Robert Lynne. The landlord is now represented by property manager Barfoot & Thompson. The tenancy commenced in February 2020.
Based on the photographs provided to the Tribunal, I would estimate that the dwelling was built somewhere around the 1980s. The dwelling is on a sloping site, and underneath the house is a garage. The garage on one wall has a locked area which only the landlord can access.
The tenant says (and the landlord disputes) that the garage flooded in mid 2020.
There is no dispute that the garage flooded with the Auckland floods on 27 January 2023. The tenant says there was regular flooding after that date.
The tenant has provided a copy of a 14 day notice dated 9 May 2022, requiring the landlord to address flooding from the landlord’s side of the garage. I assume that notice was misdated, and intended to be 2023.
On 26 June 2023, the tenant gave a 14 day notice to the landlord to address rusty staples on the bathroom floor, and mould in the conservatory ceiling.
On 30 June 2023 the landlord issued a 63 day notice terminating the tenancy on the grounds that the landlord wished to have his son move into the premises.
On 7 July 2023, the tenant gave a notice ending the tenancy, and the tenancy ended on 21 July 2023.
I convened a hearing in the North Shore on 12 September 2023. In attendance was Mr Lynne (the tenant), Mr Swamy (the landlord) Mr Reeve (the property manager) and Mrs Swamy.
I record that at the hearing the tenant objected to Mrs Swamy being in the hearing room and presenting to the Tribunal. The landlord is entitled to have a support person should he wish, and further more it is clear that Mr Swamy has requested his wife to represent him in relation to the period that Barfoot & Thompson were not acting. Because the claim is over $6,000.00, then the landlord is entitled to representation as of right.
Representative given over 6k
The tenant also objected to the landlord brining up submissions or evidence that had not been sent to him in advance of the hearing. As I noted at the hearing, the High Court has confirmed there is no obligation on parties to file documentation in advance of a hearing in the Tribunal, but the ‘other party’ should be provided with an understanding of the position taken, which I consider Mr Lynne was aware in this case.

TENANTS CASE

The tenant seeks an order that compensation of $15,000 be provided in relation to property damage, moving costs, legal fees, carpet cleaning, and exemplary damages claim on the basis of receiving a retaliatory notice.
The tenant states that about six months into the tenancy, he was notified by his flatmate that items stored in the garage were wet and mouldy. That included motorcycle gear, and books and papers. The tenant says that he looked with the landlord for the source of the leak, and could not work out where it came from. It was not a time of heavy rain.
The tenant confirmed he went about one and a half years with a dry garage until the second water leak with the 27 January 2023 floods. tenant states that there were continuing water leaks in the garage from that time even with drizzle.
The tenant described the garage as being portioned off with the landlord having a closed portion of the garage. The tenant states that he has been into that area three times, and that is the location of the water leakage.
The tenant also states there were issued with the conservatory leaking, which the tenant considered to be a separate problem to the garage leak. The tenant states that he noticed some water leakage dripping down the conservatory, and the curtains became black. The tenant says that the landlord would come to the premises and silicone the conservatory inside and out, but it continued to leak. The tenant considers that the conservatory had been poorly built.
I asked Mr Lynne how he had calculated the amount of compensation he was claiming. I noted that compensation is to reimburse a loss, and asked how he had calculated the amount of compensation he is claiming. Mr Lynne advised that he has not been able to value some of the damaged items such a damage to books.
In relation to the claim for a retaliatory notice, Mr Lynne states that he was phoned by the acting property manager who advised there was various items of work the landlord wanted to do to the premises including drainage work, and requested to come and take further photographs. It was the following day the termination notice was received. The tenant states that the family member did not move into the premises as the landlord said would occur. However subsequently the landlord undertook renovations at the premises.
Mr Lynne disputes that he modified the gutters to collect the rain water, stating that the downpipe was not attached, and he was capturing the water falling from that.
Mr Lynne concluded his case by referring to the other emails on file from people saying the conservatory would leak.
Mrs Swamy confirmed that her son moved in to the premises in July, and some work is being undertaken at the property while he was living there.
Mr Lynne states that he has been advised by neighbours that no-one was living in the premises, so disputes that the Swamy’s son has moved in.
Mr Lynne submits that the landlord has been dishonest.
Mr Lynne was concerned that he needed to claim for damage under his own insurance, rather than the landlord claiming the damage on his.

LANDLORDS CASE

Mr Reeve advised that his company commenced as agent for the landlord in March 2023, because of the relationship breakdown. Mr Reeve signalled that some of the submissions for the hearing would be from Mrs Swamy who had a better understanding of what happened prior to his company taking over.
Mrs Swamy advised that the tenant has not previously raised issues with flooding in the garage, it was only raised in early 2023 after the January 2023 flooding Mrs Swamy considered that the tenant has been abusive and difficult to work with.
Mrs Swamy advised that when attending the premises in relation to the water leak, they found that one of the downpipes had been disconnected by the tenant, so the water could be diverted into water tanks the tenant placed on the premises. The landlord states that permission was not given to disconnect the gutter. The landlord considers that because of this work, the tanks would overflow when full, and that caused the flooding in the garage.
Mrs Swamy advised that the tenant would not let the landlord enter the premises and threatened trespass. Mrs Swamy advised that the landlord would engage with the tenants lawyer, copying in Mr Lynne.
The landlord disputes that the house had issues with mould, the landlord considers that any mould or uncleanliness is a result of how the tenant would live in the premises.
The landlord notes there has not been any further flooding at the premises.
The landlord considers that any maintenance needed at the premises has been undertaken efficient, and that the issues described by the tenant relate to disputes following the issues with the downpipe being dismantled.
Mr Reeve provided submissions in relation to when Barfoot & Thompson took over managing the premises. Mr Reeve submitted that in relation to the issues with the drainage: The garage is a sub terrain garage built under a house on a slopping section downwards to the front of the section. The nature of the drainage issue into the garage was complex. When the tenant issued the first 14 day notice he mentioned that whenever it rained the guttering that serviced the sun conservatory over flowed. This guttering was small and of not the right size. This excess water that overflowed from the gutter was thought to have flowed under the house ending up in the garage as this was the lowest point of the section. We replaced this guttering to make it larger to stop this from happening. According to reports from the tenant this did not fix the issue and he issued a second 14-day notice. The owner of the property wanted to go to the property with a drain layer for further investigation. The process to fix the issue was trial and error and we had started the process and the owner was committed to fixing it.
Mr Reeve described how it could be seen that water would flow on the plastic moisture barrier down behind the wall (in the landlords closed area), but would then collect in a drain / aggregate channel inside the garage, and then flow out of the garage.
Mr Reeve advised that the tenant was not open to the landlord attending the premises, threatening to trespass him and call the police if he attended the premises.
Mr Reeve advised at the exit inspection there was no flooding in the garage.
Mrs Swamy concluded by explaining why notice was given to the tenant to end the tenancy, and in particular there was a need for her son to move into the premises. Mrs Swamy read a letter from her son, which she was not wishing to provide to the Tribunal.
Mr Lynne challenged Mrs Swamy about raising flooding in the garage. Mrs Swamy confirmed that it was only this year it was raised. Mr Lynne read an email from 4 February 2023, with Mrs Swamy the email was after the 27 January 2023 floods.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish his claims on the balance of probabilities. That means that he must establish that what he is claiming is more likely than not. This is referred to as the ‘burden of proof’. Normally independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
In adjudicating this matter I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. When weighting the evidence, it is normally the case that more weight will be given to evidence presented by a witness in person at the hearing, than emails or other written statements.
Ultimately if the tenant does not provide sufficient evidence and submissions to support his claim, it must be dismissed.

ANALYSIS

At the hearing the tenant confirmed he had claims relating to compensation for water leaks into the garage and conservatory, and that the termination notice was retaliatory.

Was there water ingress into the garage?

I accept there was flooding in the garage from 27 January 2023, but I do not accept there is evidence to support flooding earlier.
The tenants evidence was that the first flooding was in mid 2020, and then there was a gap until the 27 January 2023 severe weather event. That is consistent with an email from the tenant on 24 February 2023 stating: This email is to advise you that the garage has flooded again after to days rain this makes a total of 5 times since I moved in 4 times since jan this year.
If there were four episodes of flooding from January, then that must logically mean one episode prior, consistent with the flooding reported by the tenant at the hearing in mid 2023.
There is a 14 day notice on file from the tenant about the flooding dated 9 May 2022, which of course is between those periods of described flooding. I will proceed on the basis that was misdated, and the notice was in fact from May 2022.
I have found no contemporaneous documentary evidence on file supporting any water leak prior to 27 January 2023, the only evidence before me on that point is the evidence from the tenant which I accept.
I have no reason not to accept the landlords evidence that the first notification of the flooding was following the 27 January 2023 weather event. If there was flooding in the garage in mid 2020, I consider it likely that would have been reported to the landlord. Furthermore there the tenants evidence was that there was no flooding for around 2 ½ years. It has not been explained why there would be a hiatus in flooding over that intervening period, given the landlord had not undertaken any works to the premises which would have avoided further flooding.
The evidence from the landlord is that there was some water trickling over the moisture barrier, down the wall inside the landlords portion of the garage, but the landlord disputed there was flooding per se, stating the water would drain in the channel with the aggregate inside the garage. That makes sense, because on one side of the garage is what is clearly a drainage channel with aggregate. I consider that channel was likely build to drain any seepage from the wall, but that is not the same as there being flooding.
I accept the tenant has established flooding in the garage from and around 27 January 2023. Has there been a breach on the part of the landlord in relation to the flooding?
I have received no evidence from a qualified person identifying a fault with the house which would have caused the flooding in January 2023.
The most likely situation is that the flooding was the result of exceptional volumes of rain on 27 January 2023, which caused widespread flooding in the Auckland region at that time. But just because there was flooding, does not prove that the landlord has breached some obligation to the tenant which caused the flooding.
The tenant has not identified any breach of an obligation as it relates to the cause of the flooding in January 2023.
It is possible that there was some contribution to the flooding from the state of the gutters, but there would be dual obligations on the tenant and landlord here. .
The RTA sets out a range of responsibilities that tenants hold, at section 40. Of particular relevance in this case is section 40(1)(d) which requires that the tenant: notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs;
The tenants position in this case is that the property was leaking, and that the downpipe was not properly connected, and so he was catching the water in his water barrels from the leaking downpipe. In my assessment, if the tenant found that the downpipe was not attached, and leaking, then he was legally obligated to have raised that with the landlord, and then the landlord would have been legally obligated to repair the downpipe given the landlord’s maintenance obligations. There is no evidence on file that the tenant did notify the landlord of the issue with the downpipe.
The extent to which water coming from the disconnected downpipe would have contributed to any water ingress inside the garage, is difficult to determine, but conceivably it may have had some impact given the very point of gutters and downpipes, is to remove water from around the house.
But in the absence of the tenant raising that fault with the landlord, the landlord would not reasonably have known he needed to fix the downpipe.
Based on the information available, when the landlord became aware of the water leaks in January 2023, in my assessment the landlord did act appropriately such as arranging drainage contractors to attend the premises in early February 2023.

Is the landlord liable for damage to the tenants goods?

I find that because it has not been established that any damage to tenant goods in January 2023 (or thereafter) was the result of a breach on the party of the landlord, and damage to goods is not the liability of the landlord. The landlord was not therefore required to either pay compensation to the tenant, or to claim on his insurance for that damage.

Was the conservatory leaking?

I accept that there was leaking in the conservatory. I note a communication (undated) from the landlord to the tenant, in which the landlord states in part: That same day I had already sealed the leaky conservatory and you saw me on the roof when you were on the back lawn as you were watching me. After I had to fix the gutter and the leaky conservatory when the cyclone came there was heavy rain and wind but you did not email or phone me that the garage has been flooded all that the conservatory is leaking because I had already fixed both.
The tenant has provided an email from Nathan Canton dated 8 August 2023, Mr Canton records that he is a sales and marking consultant with ‘Harcourts Cooper and Co’. I understand that the tenant made arrangements for Mr Canton to provide support during the tenancy. Mr Canton states that: ... I also noticed during this inspection the conservatory had visible leaks and mould, and it looks like it had been closed in. Based on my experience in property (five years residential sales) does look like it definitely did not make the building code or look consented. After walking around the house it was actually noted by the property manager that the spouting looked very subpar and was way too small to be connected to the gutters and handling rainwater and run-off. Just to confirm I was the support person for John Lynn at the time of the inspection. To be clear I have a basic understanding of Tenancy law but I’m no expert in any sense. My expertise is in sales. I was there [as a] support and to be witness to the inspection. Based on what I saw, the property (in my opinion) was not up to a healthy homes standard.
I accept there was a water leak in the conservatory. On balance I accept there was mould in that area as shown in the photographs. It is well recognised that mould arises in moist areas, and I accept that there may have been a contribution from the water leak.
The conservatory has been closed in and should be considered part of the premises, and it would be reasonable for the tenant to have expected it to be dry.
The tenant has not quantified what his loss would be in relation to the conservatory, but it is fair some level of compensation should be provided for inconvenience and loss of amenity at least. I consider that an order of compensation of $500.00 would be fair in the absence of evidence of what the actual loss would be.

Was the termination notice retaliatory?

Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power , authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.
The Tribunal found that the landlord, in giving notice of termination, was therefore not motivated wholly or partly by the tenants’ exercise of powers within the meaning of s 54.
A notice of termination given for genuine and fair reasons will not be considered retaliatory. For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that the notice was not retaliatory. Judge Ongley stated he was: ... quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her. She found that Mr Kerr was not a suitable tenant for those flats because he could not tolerate activities by other tenants which Mrs Woodman believed were unavoidable. She believed that she was faced with the alternatives of either having continuous disputes among tenants, or otherwise bringing Mr Kerr’s tenancy to an end. I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.
It is lawful under section 51 for a landlord to give notice terminating a tenancy if a family member is to move into the premises. The tenant disputes that the landlord son had moved into the tenancy, referring to an email from a neighbour, Michael Leathart. I have not heard evidence directly from Mr Leathart, but I have heard evidence from the landlords on the matter. I accept the landlords evidence that their son moved into the premises in July 2023, which of course is consistent with the notice that they gave ending the tenancy.
The landlord has produced text message conversations with their son, which are also consistent with the son intending to move into the premises prior to the termination date.
I am not persuaded that the evidence supports the termination notice to be retaliatory, I consider the notice was a valid notice for the reasons given by the landlord.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression. However given the tenant has not been substantially successful in the claims, the application must be declined.

Tenancy Tribunal case 4614730 — 14-day notice at 5 Spinella Drive, Bayview, Auckland 0629

Tenancy Tribunal case 4614730 — 14-day notice at 5 Spinella Drive, Bayview, Auckland 0629

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Was there water ingress into the garage?

Is the landlord liable for damage to the tenants goods?

Was the conservatory leaking?

Was the termination notice retaliatory?

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Was there water ingress into the garage?

Is the landlord liable for damage to the tenants goods?

Was the conservatory leaking?

Was the termination notice retaliatory?

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions