What was the outcome of Tenancy Tribunal case 4619029?

The tribunal order states: The landlord’s application for termination is dismissed.

How much money was awarded in case 4619029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4619029?

The primary dispute was 14-day notice. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4619029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9202467-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4619029?

The tribunal order states: The landlord’s application for termination is dismissed.

How much money was awarded in case 4619029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4619029?

The primary dispute was 14-day notice. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4619029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9202467-Tenancy_Tribunal_Order.pdf.

19 Titchener Street, New Lynn, Auckland 0600 Tenancy Tribunal Case 4619029 — 14-day notice

Order

The landlord’s application for termination is dismissed.

Reasons

Ram Nararyanaraja attended the hearing for the landlord.
The tenant attended in person.
The landlord has applied for termination of the tenancy for tenant breachin their obligations.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate: s 56(1) of the Residential Tenancies Act 1986 (RTA).
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The tenant purportedly breached their obligations by keeping a dog, a mid-size Schnauzer-cross which has a tendency to bark.
The landlord served a 14-day notice on the tenant on 18 April 2023, and the landlord alleges tenant did not remedy the breach within the required period.
It would not be inequitable to refuse to terminate the tenancy because the tenant has re-homed the dog and the last external complaint about the dog was on 13 June 2023. Moreover, the “no pets” term in the tenancy agreement is probably unenforceable. Legal principles as explained Adjudicator Alan Henwood
For the parties’ benefit, I adopt my brother adjudicator, Alan Henwood’s analysis of this issue: 1
“No pet” clauses are prone to being found unenforceable under s 11 RTA. Section 11(1) provides: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— .... (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted.
The issue is whether a ‘no pets’ provision is inconsistent with any provision of the RTA. In the limited case of service dogs, any restriction would breach s 12 RTA and s 21(1)(h) Human Rights Act 1993.
Section 40 defines a tenant’s responsibilities. None of them directly restrict a tenant’s right to have a pet, although obligations around cleaning and damage could be indirectly relevant if a pet is known to have bad habits.
Where the RTA neither specifically prohibits nor permits a particular activity, the issue is whether a landlord has contractual freedom to impose a restriction on the tenant. This is likely to depend on whether the restriction breaches the tenant’s general rights in s 39(1) and (2) RTA 1 In answer to an “anonymous question” – Tenancy Adjudicator Conference 2021. 38 Quiet enjoyment (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
The commentary on s 38(1) in Westlaw states that the covenant for quiet enjoyment protects the tenant’s right to “peaceful possession and enjoyment of the premises” and that enjoyment means “having the full benefit” of the premises.
Arguably, the ability to have a pet is part and parcel of a tenant’s right to have the ‘full benefit’ of occupying the premises. Given the close personal relationship many people have with their pets, it is also arguable that a blanket prohibition could breach their right to ‘reasonable ... comfort’.
If this is accepted, then the question then arises under s 11(1)(b) whether any particular restriction on pets should be permitted. It is useful to consider some pet examples and other circumstances where a landlord might seek to restrict a particular activity: a. A goldfish, a budgie or a guinea pig is a pet. Is it reasonable to prohibit a tenant from keeping one under a ‘no pets’ policy? If not, is this because they are unlikely to cause damage or increase wear and tear? b. ‘No smoking inside’ clauses are almost universal and are unobjectionable, presumably due of the risk of damage from smoke residue. On the other hand, a prohibition on cooking particular types of aromatic food is not permissible. c.A prohibition on a tenant wearing shoes inside is unlikely to be permissible, but it may be if the prohibition was limited to stilettos on a polished timber floor.
In each case the balance is between the tenant’s right to quiet enjoyment and reasonable comfort, against the risk of damage or excessive wear and tear to the premises.
If the risk from a pet is low, then there is a strong argument that a blanket ‘no pets’ policy is likely to breach s 38 and should not be permitted under s 11(1)(b). If the risk is high, then the restriction is likely to be permissible. There is obviously a grey area in the middle. a. The argument is most likely to arise where a landlord seeks to terminate for breach of a no pets policy. A possible middle path is for the Tribunal to determine that: i. A blanket ‘no pets’ policy in not automatically lawful and enforceable. ii. A landlord may include a term in a tenancy agreement that having a pet is subject to the prior written consent of the landlord. iii. The landlord may not unreasonably withhold consent or attach unreasonable conditions. iv. In considering whether it is reasonable to allow the pet to stay, factors could include:
the size and type of animal;
whether the animal has caused any damage to the premises or disruption to the neighbourhood;
if the pet is chipped and, in the case of a dog, registered;
whether the animal has regular flea treatment;
whether the pet is house-trained if it is to be inside;
if the owner has pet insurance against damage (although this would be voluntary);
the reasons for obtaining the pet (e.g. security or emotional health and wellbeing);
the length of time the tenant has owned the pet (has it become an integral member of the family); and
if consent was not sought, the reasons why not.
Note that a landlord cannot require a pet bond in addition to a bond allowed under s 18 (s 18A). Outcome
The landlord’s application is dismissed.

Order

The landlord’s application for termination is dismissed.

Reasons

Ram Nararyanaraja attended the hearing for the landlord.
The tenant attended in person.
The landlord has applied for termination of the tenancy for tenant breachin their obligations.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate: s 56(1) of the Residential Tenancies Act 1986 (RTA).
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The tenant purportedly breached their obligations by keeping a dog, a mid-size Schnauzer-cross which has a tendency to bark.
The landlord served a 14-day notice on the tenant on 18 April 2023, and the landlord alleges tenant did not remedy the breach within the required period.
It would not be inequitable to refuse to terminate the tenancy because the tenant has re-homed the dog and the last external complaint about the dog was on 13 June 2023. Moreover, the “no pets” term in the tenancy agreement is probably unenforceable. Legal principles as explained Adjudicator Alan Henwood
For the parties’ benefit, I adopt my brother adjudicator, Alan Henwood’s analysis of this issue: 1
“No pet” clauses are prone to being found unenforceable under s 11 RTA. Section 11(1) provides: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— .... (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted.
The issue is whether a ‘no pets’ provision is inconsistent with any provision of the RTA. In the limited case of service dogs, any restriction would breach s 12 RTA and s 21(1)(h) Human Rights Act 1993.
Section 40 defines a tenant’s responsibilities. None of them directly restrict a tenant’s right to have a pet, although obligations around cleaning and damage could be indirectly relevant if a pet is known to have bad habits.
Where the RTA neither specifically prohibits nor permits a particular activity, the issue is whether a landlord has contractual freedom to impose a restriction on the tenant. This is likely to depend on whether the restriction breaches the tenant’s general rights in s 39(1) and (2) RTA 1 In answer to an “anonymous question” – Tenancy Adjudicator Conference 2021. 38 Quiet enjoyment (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
The commentary on s 38(1) in Westlaw states that the covenant for quiet enjoyment protects the tenant’s right to “peaceful possession and enjoyment of the premises” and that enjoyment means “having the full benefit” of the premises.
Arguably, the ability to have a pet is part and parcel of a tenant’s right to have the ‘full benefit’ of occupying the premises. Given the close personal relationship many people have with their pets, it is also arguable that a blanket prohibition could breach their right to ‘reasonable ... comfort’.
If this is accepted, then the question then arises under s 11(1)(b) whether any particular restriction on pets should be permitted. It is useful to consider some pet examples and other circumstances where a landlord might seek to restrict a particular activity: a. A goldfish, a budgie or a guinea pig is a pet. Is it reasonable to prohibit a tenant from keeping one under a ‘no pets’ policy? If not, is this because they are unlikely to cause damage or increase wear and tear? b. ‘No smoking inside’ clauses are almost universal and are unobjectionable, presumably due of the risk of damage from smoke residue. On the other hand, a prohibition on cooking particular types of aromatic food is not permissible. c.A prohibition on a tenant wearing shoes inside is unlikely to be permissible, but it may be if the prohibition was limited to stilettos on a polished timber floor.
In each case the balance is between the tenant’s right to quiet enjoyment and reasonable comfort, against the risk of damage or excessive wear and tear to the premises.
If the risk from a pet is low, then there is a strong argument that a blanket ‘no pets’ policy is likely to breach s 38 and should not be permitted under s 11(1)(b). If the risk is high, then the restriction is likely to be permissible. There is obviously a grey area in the middle. a. The argument is most likely to arise where a landlord seeks to terminate for breach of a no pets policy. A possible middle path is for the Tribunal to determine that: i. A blanket ‘no pets’ policy in not automatically lawful and enforceable. ii. A landlord may include a term in a tenancy agreement that having a pet is subject to the prior written consent of the landlord. iii. The landlord may not unreasonably withhold consent or attach unreasonable conditions. iv. In considering whether it is reasonable to allow the pet to stay, factors could include:
the size and type of animal;
whether the animal has caused any damage to the premises or disruption to the neighbourhood;
if the pet is chipped and, in the case of a dog, registered;
whether the animal has regular flea treatment;
whether the pet is house-trained if it is to be inside;
if the owner has pet insurance against damage (although this would be voluntary);
the reasons for obtaining the pet (e.g. security or emotional health and wellbeing);
the length of time the tenant has owned the pet (has it become an integral member of the family); and
if consent was not sought, the reasons why not.
Note that a landlord cannot require a pet bond in addition to a bond allowed under s 18 (s 18A). Outcome
The landlord’s application is dismissed.

Tenancy Tribunal case 4619029 — 14-day notice at 19 Titchener Street, New Lynn, Auckland 0600

At a glance

Tenancy Tribunal case 4619029 — 14-day notice at 19 Titchener Street, New Lynn, Auckland 0600

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions