What was the outcome of Tenancy Tribunal case 4625295?

The tribunal order states: The Tenants application is dismissed.

How much money was awarded in case 4625295?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4625295?

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

Where can I read the official tribunal order for case 4625295?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10010352-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4625295?

The tribunal order states: The Tenants application is dismissed.

How much money was awarded in case 4625295?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4625295?

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

Where can I read the official tribunal order for case 4625295?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10010352-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 259 Hobsonville Road, Hobsonville, Auckland Tenancy Tribunal Case 4625295 — 14-day notice

Order

The Tenants application is dismissed.
The landlords application is withdrawn.

Reasons

The Tribunal must consider an application filed by the tenants against the landlord. The tenants rented the property, but prior to the tenancy commencing, the tenants considered that a cockroach infestation meant they could not live in the premises and in fact they did not move in. The tenants requested to terminate the tenancy contract, and the landlord found a replacement tenant. The tenants seek one week of rent that is held by the landlord, and damages. The landlord disputes that any breach of an obligation to the tenants arises.
Both parties appeared at the hearing today in Waitakere.

BACKGROUND

The parties have both set out comprehensive backgrounds in the documentation they have filed. However for context, I will summarise the key background events as follows a. The tenant’s viewed the premises firstly on two separate occasions on 14 June 2023. The tenants consider they were rushed with these viewings. b. The parties entered into a fixed term tenancy agreement on 16 June 2023, the fixed term tenancy was to commence on 23 June 2023, and end on 22 June 2024. c. On 19 and 20 June, the tenants attended the premises. On both occasions the tenants identified defects with the premises which were communicated to the landlord. No mention of cockroaches was made. d. The tenants requested to clean the carpets prior to moving into the tenancy, which was approved. This carpet cleaning occurred on the evening on 21 June. The tenant’s position is that the noise and vibrations from this carpet cleaning disturbed the cockroaches, causing them to become visible. Photographs were taken and sent to the landlord that night, as was a text message, noting “. For the avoidance of doubt, this is the first time the tenants had reported any concerns around cockroaches. e. The landlord had earlier arranged for ‘Bugking’ to undertake a flea treatment given the premises had been locked up prior to the tenancy commencing, and that was coincidentally to occur on 22 June. The landlord arranged for Bugking to undertake a cockroach treatment also. f. On 24 June the tenants advised the landlord that they no longer wished to move into the premises, and applied for a refund of their bond and rent paid. g. On 28 June the tenants own contractor, Rentokill, attended the premises for a second treatment. h. Following a meeting on 1 July, the tenants confirmed they had found another house an no longer wanted to move into these premises. The landlord agreed to re-advertise the premises. A new tenant was found and moved in later in July.

TENANTS CASE

The tenant’s position is that they are have been treated badly by the landlord, and they seek to have justice from the Tenancy Tribunal. The tenants seek to have all money paid to the landlord refunded, noting that most funds have been refunded already. The tenants position is that the landlord has failed to comply with its obligations to rent the property reasonably clean.
The tenant states that prior to renting the premises they viewed the property twice, but state this was too short for them to properly assess any issues with the premises. Then a few days prior to the start date of the tenancy, it was agreed with the landlord that the tenants would undertake some additional cleaning, because they have high cleaning standards. The tenants arranged for carpet cleaning. The tenant states that once the carpet cleaner was turned on the noise and vibration from the machine caused the insects to come out. The tenant says that the property manager was contacted and advised of the situation, and the tenants then set about negotiating a resolution with the landlord. The landlord offered to arrange a treatment, and they found that some treatments need up to 14 days to work, and even then they may need a second treatment. The tenant states the property manager agreed to arrange a treatment and put the tenancy on hold.
The tenant says that it was agreed with the property manager that a refund of the amounts paid would be made, if there was a continued cockroach problem following.
The tenant referred to a documented record he took of a conversation with the property manager which he provided to the property manager detailing his discussion with her, but that she did not respond.
The tenant states that because of the issues, there has been impacts for the family, such as a child being unable to start school in the North Shore.
The tenant does not consider the landlord has acted honourably in this case.
The tenant seeks to have one week of rent refunded, and damages to be ordered.

LANDLORDS CASE

The landlords position is that they have acted in a fair and reasonable way.
The landlord states that the tenants viewed the premises twice on 14 June. The landlord states there were four attendances at the premises by the tenant, from which the tenant did not raise any issues with cockroaches. The landlord states that cockroach issues were only noted after the carpet cleaning.
When the concerns were raised by the tenants, it was agreed to postpone the move in date for the tenants.
The landlord states that it was not until 1 July that the tenants requested to end the tenancy. The landlord considered that to be a break lease situation.
I asked the property manager if he considered the premises would have been liveable. Mr Smith advised that while photographs were provided showing cockroaches, there was only one insect seen in each photograph. Mr Smith had not seen the property himself, it was another property manager dealing with it.
Mr Smith disputes that the other property manager had agreed they could end the tenancy, rather the agreement was only if the cockroach treatment was not effective it could end. The landlord does not consider it would be logical that the tenant would have been able to confirm the treatment was not effective by a view the following day of the treatment, or is his statement of what the other property manager said, consistent with the documentary evidence.
In short, the landlord considers that it has acted reasonably in how it has addressed the issues, and opposes any order being made in favour of the tenants.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.

ANALYSIS

As set out above, the tenant’s position is that the landlord has breached its obligations in renting them premises that had a cockroach infestation. The tenants consider they were justified in cancelling the contract, and that the landlord should reimburse them the final week of rent the landlord holds, and pay them compensation and exemplary damages.
In order to make any order for the refund of rent, or the payment of any compensation or damages, I must first establish that there has been a breach on the part of the landlord. If no breach has been established, then obviously there would be no basis upon which the tenants claims could be upheld.
Section 45 of the RTA sets out the landlords responsibilities, and that requires that at the start of the tenancy the landlord must “provide the premises in a reasonable state of cleanliness”. It can be accepted that for the purposes of that provision, if there was an infestation of insects, the premises would be deemed unclean.
It is also relevant to note even if the evidence was that the premises were unclean (the landlord breached section 45), that does not of itself mean the premises were uninhabitable.
As I indicated at the hearing today, the difficulty that arises with these sorts of cases, is determining if there is an infestation, so as to breach the section 45 requirement. It is important to recognise that it is not at all uncommon for residential dwellings to have insects of some variety, in fact it would be next to impossible to contemplate a house without any insects whatsoever. Insects are a natural part of the environment, and as humans we have learnt to live with them. But there does become the point where the level of insects present goes beyond what would be reasonable to accept, and then the level would be deemed an ‘infestation’, and that the premises were ‘unclean’.
To my knowledge, there no simple test that can be presented showing that premises are infested and unclean / uninhabitable, rather what the Tribunal must do, is consider all of the evidence available, and step back and decide whether the premises would in fact be infested and whether the landlord had breached its obligation to provide the tenant with reasonably clean premises.
I note also at this point, that the statutory obligation on the landlord is to provide premises “in a reasonable state of cleanliness”. The law does not require the premises to be absolutely immaculate, without any insect present whatsoever. The landlord only needs to provide premises reasonably clean, which must necessarily mean that if there was a low level of insects present, that could still fall within the reasonably clean requirement.
In this case I accept as does the landlord, that insects were identified at the premises following the carpet cleaning. But on the basis of the evidence I have available, I have been unable to conclude that the premises were not provided to the tenant in a reasonable state of cleanliness.
In reaching that finding, I am particularly persuaded by the fact that the tenants attended the premises four times prior to the carpet cleaning, and did not notice the presence of cockroaches. If there had been an infestation then it would be more likely than not that cockroaches would have been seen earlier. The impression I have gleaned from the file, is that the tenants have been careful with inspection of the premises, and that can be seen in the communications with the landlord where they identified defects, prior to the tenancy starting. The fact of the tenants wanting to have the carpets cleaned, further indicates that they may have high standards in regard to their expectations around cleanliness.
Furthermore, as submitted by the landlord, while the tenants provided photographs of isolated cockroaches, they are just that, single isolated cockroaches in each image.
Finding as I do that the tenants have not proven that the premises were not reasonably clean, then the tenants claims against the landlords must fail entirely.
However, even if I were wrong in that assessment, I would have declined to make any order of rent refund or compensation for these reasons.
Firstly, on the evidence available I am not persuaded that the premises were uninhabitable.
Secondly, there is a duty that the tenants had to mitigate their loss. That requirement is found in section 49 which holds:
Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.”
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
In this case, I would have determined that it would have been reasonable for the tenants to have allowed the landlord to undertake commercial pest control in the first instance. There is no evidence before the Tribunal to suggest that professional pest control would not have resolved the issue. The parties have both referred to indications from the pest controllers, that in most cases cockroach treatments are affective within 14 days, and only in some cases a second treatment is needed. In all likelihood then, within a two week period the problem would have been resolved.
A far more proportionate response would be to continue with the professional pest control, as the landlord had arranged with Bugking. If there was an infestation that made the premises and inhabitable, and the pest control did not resolve it, at that point the tenants may have an argument that the tenancy should end, or compensation be provided.
I have also considered whether there is evidence to show that the landlord had agreed to release the tenants from all obligations, without any cost – that is to refund or rent and bond. There is a sharp difference of opinion between the parties around this. The tenants consider that the property manager had made such an undertaking, but that is disputed by the property manager.
The property manager has provided her recollection of events by way of an email to Mr Smith where she states in part: Mr Jose enquired as to cancellation of the contract if the treatment was not successful. I conveyed that cancellation was contingent on the outcome of the treatment, the duration of which was typically 14 days, as the pest controller had explained.
On balance, I consider it would be more likely that any undertakings made by the property manager, were consistent with the email statement above. In my assessment the communications that are on file would be more consistent with the property manager agreeing to consider cancellation of the contract, if the pest control was not successful, but not earlier. I also consider that it would be highly unusual for a landlord to have agreed to cancel the contract with a refund of all rent, in the circumstances of insects being found in the premises without first attempting professional pest control.
I also accept that the landlord had tried to negotiate a resolution of the dispute with the tenants, and that was the right thing to do. Tenants and landlords should try to settle disputes with each other where possible. But ultimately the tenant entered into a fixed term contract with the landlord, and the landlord was entitled to be paid rent to the end of the fixed term period, or until the next tenant moved in. In this case the landlord only seeks to retain one week of rent, and I think the tenants have probably ended the tenancy better than they strictly could have been.
For those reasons, even if I had found that the premises were not reasonably clean, I would have declined to order the landlord to pay rent or compensation to the tenants. LANDLORD’S CLAIM AGAINST THE TENANTS
In the circumstances, Mr Smith requested that the landlords application be withdrawn. The withdrawal is therefore confirmed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenants have applied for name suppression, but given they have been unsuccessful in the proceeding, name suppression is declined.

Tenancy Tribunal case 4625295 — 14-day notice at Unit/Flat 2, 259 Hobsonville Road, Hobsonville, Auckland

At a glance

Tenancy Tribunal case 4625295 — 14-day notice at Unit/Flat 2, 259 Hobsonville Road, Hobsonville, Auckland

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions