What was Tenancy Tribunal case 4635653 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 4635653?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4635653?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Healthy homes, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4635653?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9407879-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4635653 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 4635653?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4635653?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Healthy homes, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4635653?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9407879-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4635653 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlords name and identifying details.
[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] immediately.
The tenants claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing today, 12 September 2023.

BACKGROUND

This is a long tenancy, commencing in 2015. However the evidence is that in more recent years, a range of disputes between the parties have arisen.
It is relevant to note that the Tribunal has issued an earlier order terminating the tenancy due to significant rent arrears, that order dated 3 June 2022. That was a telephone hearing, and the adjudicator records calling the tenant but the calls going to voicemail. The tenant applied for a rehearing, stating that his phone had been set to a particular setting meaning he could not attend the hearing. The Tribunal ordered a stay, and directed a further hearing. Following that further hearing the rehearing was granted, but the Tribunal also declined to terminate the tenancy because the tenant had caught up with his rent payments by that time.
On 17 April 2023 the landlord issued the tenant a 90 day termination notice, terminating the tenancy on the grounds that the landlord intended to commence significant works to the tenancy, and that it would not be reasonable to proceed with those works with the tenant in residence. The notice required possession to return to the landlord on 17 July 2023.
When the tenant did not vacate the tenancy following that notice, the landlord filed an application with the Tribunal on 20 July 2023 seeking a possession order.
On 27 July 2023 the tenant file an application in relation to a range of matters.

LANDLORDS CLAIM

The sole claim from the landlord is for a possession order. Possession order
The landlord seeks a possession order on the basis of the 90 day notice issued to the tenant, which has not been complied with. The landlord states that the owner is wanting to undertake significant renovations to the premises, including installing a new kitchen, and replacing the windows, as well as repainting.
The landlord provided a quotation for a new kitchen, that quotation dated 15 May 2023. At the hearing [The landlord’s representative] stated that the quotation has been accepted by the property manager on behalf of the owner, and notes that the quotation records that the joiner preferred to have the premises empty for safety reasons.
In response the tenant states that he did not receive the 90 day notice when it was initially sent, and that he only received it about 6 weeks following it being emailed. The tenant states that the notice was sent from someone he does not normally deal with, so his email was not set to alarm when it was received. Mr Hawkless also states that his email could have been opened by his children to account for the landlords records that it was opened soon after being sent.
In conclusion [The landlord’s representative] states that she was on leave when the notice was sent (the notice was issued following an instruction from the owner to proceed with work at the tenancy), hence it being from a different person in the office. [The landlord’s representative] noted that their electronic system showed the email was opened on or around the day it was sent, and furthermore the tenants discussed that fact of the 90 day notice at the time of a later inspection on 2 June. Analysis
Section 51(2)(f) confirms that a landlord can terminate the tenancy with notice if the landlord is undertaking extensive alterations, refurbishments, repairs or redevelopment, and it would not be reasonably practicable for the tenant to remain in occupation of the premises during that work. The work must begin or at least material steps taken, within 90 days of the tenancy terminating.
I am satisfied that the landlord is intending to replace the kitchen and windows. I do not think it would be reasonably practicable to undertake that work with the tenant living in the premises. The works are significant, and the landlord would be justified in having the premises vacant for that work to conclude. I accept the notice was valid.
I also consider that the notice was more likely than not properly served on the tenant. Email was a form of communication used by the parties, and it was not unreasonable for the tenant to be served the notice by email. I have no reason not to accept that landlords evidence that the email was opened around the time it was sent, which supports that the email was delivered. The fact of the tenant not reading the email at the time as he says, is not evidence the notice was not served.
The landlord has a right to possession of the premises, so the possession order is granted with immediate effect.

TENANTS CLAIM

The tenant has not supplied any documentary evidence with his application, the only evidence was oral evidence given at the hearing, and I read the Healthy Homes Assessment report he obtained on his phone. Retaliatory notice
The tenant’s position is that the termination notice was retaliatory given the landlord failed to succeed in terminating the tenancy in July 2022. The tenant says that at the video hearing [The landlord’s representative] was ‘pulling her hair out’ when the termination application was declined, and from that time the relationship with the tenant broke down. The tenant further states that other disputes lead to the termination notice.
[The landlord’s representative] advised that the decisions around termination were done by the owner, after seeing photographs of the premises. The property manager disputes the notice was in retaliation for anything the tenant has done.
The tenant states that he has been asking for the landlord to address draughts in the joinery from the start of the tenancy which would have motivated the landlord to end the tenancy. Analysis
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.
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.
In this case the evidence does not support that the termination notice was retaliatory. The tenants evidence was that there were issues with the window joinery, and in fact he has made a claim against the landlord for the windows himself. I accept that the windows require replacement. I also accept that the kitchen joinery is in line for replacement. For the reasons discussed above, I consider it reasonable to have the dwelling vacant for that work to conclude.
I consider it unlikely that there is a direct relationship between the termination notice in April 2023, and the original application for termination being declined by the Tribunal in July 2023. There was around three quarters of a year between the events, which makes any association between the two unlikely.
I accept the evidence of the property manager that the instructions for terminating the tenancy to proceed with renovations was made by the owner of the premises, which would normally be the case.
The application for a declaration the notice was retaliatory is dismissed. Breach of quiet enjoyment
The tenant considers that his quiet enjoyment has been breached in relation to the landlord arranging a bailiff to attend the premises following the termination of the tenancy.
The tenant further considers that the property manager issuing 17 separate 14 day notices to do work on the premises, including removing cameras, has been over bearing. The tenant accepted some of those notices were reasonable and he has complied with them, but some overbearing and unreasonable, such as removing a motorcycle off the drive way, or being required to move work benches off the driveway.
The landlord disputes there was any 14 day notice given to remove anything from the driveway.
The landlord states that it was reasonable to request the bailiff to attend the premises because the tenant failed to leave the premises following the original termination order, and that once the stay was ordered by the Tribunal (following the rehearing request), that no further Bailiff attendance was requested.
The landlord states that 17 copies of the 14 day notices were notices that had been given over the past two years that the tenant had not complied with. The property manager states the intention was to remind the tenant of what he needed to do before leaving the premises, noting that the 17 notices were resent after the 90 day termination notice was given. The work included fixing a fence and removing structures affixed to the building. The landlord disputes there was any requirement to move motorbikes off the driveway.
In conclusion the tenant acknowledged that the notices did relate to some structures build around the premises. The tenant states that he has separated from his wife as a result of the stress around the landlord. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quite enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that 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 Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
When I consider the matters raised by the tenant, I am satisfied that the landlord has not harassed the tenant as defined above.
There can be no issues with the landlord applying for an eviction of the tenancy following the original termination order of the Tribunal. The Tribunal ordered that the tenancy terminate and that possession return to the landlord. When the tenant failed to return the tenancy as required in that order, the landlord was entitled to have the tenants evicted from the premises. The fact that later a rehearing application was filed, and a stay of proceedings ordered, does not change the fact that the eviction was open to the landlord at the time.
In relation to the 14 day notices, the tenant has not convinced me that the landlord has harassed the tenant in relation to those notices. The tenant accepts some of those notices were valid, and I accept that the intention of the landlord in sending the notices in bulk again was to remind to the tenant what he needed to do before vacating the premises at the expiry of the 90 day notice.
The application for a breach of quiet enjoyment is dismissed. Breach of the Healthy Homes Standards / maintenance of the premises
The tenant submits that the landlord has breached the Healthy Homes Standards.
When I raised with the tenant that this claim must fail because the Healthy Homes Standards would not apply to this tenancy until July 2025, the tenant accepted that was the case, but states that otherwise the landlord has not properly maintained the premises. The tenant referred particularly to issues with some windows.
I asked the tenant if he had issued a 14 day notice to the landlord to repair the defects with the premises? The tenant states that the was advised to do so, but accepts that he did not because he did not want to upset the landlord.
The landlord disputes that the premises were not maintained, and produced invoices supporting that. The landlord also referred to a property inspection report from 2019 where the tenant described the premises as ‘brilliant’. The landlord considers that some of the issues with draughts in the premises are the result of the tenant closing a number of cords in the window, thus warping the window frames (noting the tenant refuses to remove the cables).
In conclusion the tenant states that he has received his own HHS assessment in which the tenancy failed the assessment. Portions of this were read out at the hearing and I read the report on the tenant’s phone. The failures related to: a. Blocked gutters and disconnected pipes b. Draughts from windows c. Kitchen fan not working d. Bird nesting in bathroom extractor fan
The tenant states that the landlord did undertake some work on the gutters. Analysis
The claim for a breach of the Healthy Homes Standards is dismissed because that standard does not apply to the tenancy until 2025.
The landlord has provided an HHS assessment report which shows the tenancy passed that inspection for all standards. The tenant states that he has obtained his own assessment (funded by WINZ), but this was not filed with the Tribunal before the hearing. The tenant states his assessment failed the moisture ingress, drainage, draught stopping and ventilation standards. The problem for the tenant is that even if his assessment report was accepted, he has not identified what legal obligation the landlord has breached as would be required now.
In relation to the birds living in the vent the tenant states that this was raised with the landlords inspector, and also the range hood was reported as faulty. The landlord disputes being advised of these issues. I have not reason to accept the tenants statement over that of the landlord.
In terms of maintenance, I do not consider the tenant has proven that the landlord has not maintained the premises. The landlord has produced invoices supporting that maintenance was undertaken, and the tenant agreed that some maintenance such as on the gutter has been done. I am also minded that the tenant has not provided a 14 day notice to the landlord requiring the landlord to address maintenance needs if there were such requirements.
On balance I am not persuaded that the landlord has failed to reasonably maintain the premises as claimed. The tenant has not established this claim, so it is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case both parties have applied for name suppression. The landlord has been successful in its claim and the defence against the tenants claim, so I order name suppression to apply for the landlord only.

Tenancy Tribunal case 4635653 — Rent arrears

At a glance

Tenancy Tribunal case 4635653 — Rent arrears

At a glance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CLAIM

TENANTS CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CLAIM

TENANTS CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions