What was Tenancy Tribunal case 4637969 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4637969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4637969?

The dispute type was not classified.

Where can I read the official tribunal order for case 4637969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9662012-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4637969 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4637969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4637969?

The dispute type was not classified.

Where can I read the official tribunal order for case 4637969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9662012-Tribunal_Order.pdf.

664A Onewhero-Tuakau Bridge Road, Onewhero, RD 2, Tenancy Tribunal Case 4637969 — Tenancy dispute

Order

The application is dismissed.

Reasons

Both parties attended the hearing on 17 November 2023. Background
The tenant has lived at the property since April 2019, initially under a fixed term tenancy and now a periodic tenancy. The property is rural and comprises about 1,000 square meters in total. As well as the main dwelling there is a double garage and a woodshed. There was also a hot house and veggie garden until about February 2022, when they were removed by agreement. Temporary fencing was then put up around this area.
Since about December 2020 the landlord has been planning to build a minor dwelling at the northern boundary of the property (the current dwelling being close to the southern boundary). A resource consent is still to be issued. In late September 2023, the landlord notified the tenant that the building project was put on hold. The landlord offered to move the temporary fences which enclosed where the minor dwelling was to be built (and where the veggie garden had been). The tenant declined this offer in an email dated 27 September 2023.
On 24 July 2023, the tenant applied to the Tribunal seeking orders relating to (1) compensation for loss of land and amenities or a reduction in rent; (2) the provision of raised gardens; and (3) maintenance of the driveway.
As discussed at the hearing, to the extent that the tenant’s application sought to anticipate the effect of the intended building project on her tenancy rights, the Tribunal is unable to make any factual findings. Issues about whether the tenant will suffer loss of quiet enjoyment when the minor dwelling is built or would be entitled to compensation or reduction in rent, because there will be less land available for use, are hypothetical.
To the extent that the building project will change the land area included in the tenancy, it could be seen as a variation of the tenancy agreement that will need to be negotiated. Otherwise, building works which change the extent of the tenancy might be a breach of contract (see the Tribunal’s approach to the subdivision of a tenanted property in Pratt v Bunce [2020] NZTT Napier 4281386, 4281546). Loss of land or amenity / provision of raised garden bed
The tenant explained that she had agreed to the removal of the veggie garden in return for the provision of raised garden beds. This area had since been fenced off. The raised beds had not been provided and compensation of $3,000.00 was claimed.
The landlord said it had been agreed that the veggie garden would be removed to make it easier for the tenant to maintain the property. If the tenant had been able to maintain the land, it would have been unnecessary for the veggie garden to be removed prior to commencement of the building project. The landlord said they had offered to remove the temporary fencing around this area which the tenant had declined.
The landlord’s initial offer to build raised garden beds was made in the context of whether the tenant was going to remain in occupation after the minor dwelling was built. The landlord remains willing to build new veggie bins, but until the building project has the necessary Council consents, it is not clear where they can be positioned. The landlord has been advised that extensive earthworks will be needed to create a new dispersion field for the septic tank that is suitable for the existing residence and the additional minor dwelling. The landlord says if the beds are built now, they might have to be removed later.
I am not persuaded that there has been a loss of land or amenities in breach of the tenancy agreement. The veggie garden and hot house were removed by mutual consent, having become overgrown. The tenant has placed veggie bins in front of the North-facing deck instead, and the landlord has suggested that the tenant use an area at the front of the property around the septic tank (which is dug into a garden bed) for further planting. While the tenant says this area is overgrown and would require a lot of work to make ready, the landlord pointed to a photograph showing the area in a reasonably tidy condition at the start of the tenancy.
The landlord is also willing to remove the temporary fencing if the tenant wishes to use the area where the veggie garden and hot house used to be. The tenant says this is not practical because anything that is planted there might have to be removed if resource consent is obtained. This was one of the reasons why the veggie garden became untidy in the first place – the tenant said she stopped maintaining the area because it was going to be removed when the building project started.
The tenant had an obligation to maintain the lawns and gardens, irrespective of the timing of any proposed project. The obligation continues until the end of the tenancy. While the building project has created uncertainty, it did not directly affect the tenant’s continuing right to use the land, including the veggie garden.
Whether the parties agreed on removal of the veggie garden because the tenant was struggling with maintenance, or because the tenant was concerned about loss of use in the future, is not determinative. The landlord’s suggestions for other areas that can be utilised for planting may or may not compensate the tenant for any loss of amenity from removal of the veggie garden, but this is also beside the point in my view. The parties agreed (in effect) to remove part of the land area from the tenancy but the land is still available if the tenant wishes to use it. Driveway
The tenant said the gravel driveway needed re-metalling. There had been a lot of torrential rain and some of the metal had been washed away. As a result, she has to spray the driveway quite often to maintain it.
The landlord said the driveway had degraded but if properly maintained would not need re-gravelling. The gravel driveway between the existing residence and the garage will be redeveloped during construction of the minor dwelling. I understood that the southerly portion of the driveway is concrete and will not be affected.
The landlord’s concern relates to damage to the driveway over time if it is not properly weeded. The tenancy agreement provides that the tenant will mow the lawns and keep the gardens tidy. It does not say anything about the driveway. At the same time, section 40(1)(c) of the Residential Tenancies Act 1986 requires the tenant to keep the premises (which includes the land) reasonably clean and reasonably tidy. Given that weeding the driveway only requires spraying the surface, it is not a task which requires specialist skill or technical knowledge.
The driveway appears to be useable. If it was not, and required re-metalling, then that would be part of the landlord’s maintenance obligation. Further, if the driveway could not be maintained without very frequent weed spraying, the tenant’s obligations would likely be subject to an implied term that it must be reasonably practicable to maintain (see my comments relating to maintenance of a swimming pool by the tenant, in Wiki Property Management Limited v Tenant [2022] NZTT 4301945, 4304076).
The tenant noted that she uses organic sprays due to her son’s medical condition. I accept that the weed spraying does need to be performed with care in that sense. However, I am not satisfied that the driveway cannot be maintained by the tenant weed spraying every 4-6 weeks, which I consider reasonably practicable. Filing fee and name suppression
The parties will bear their own costs of the Tribunal process.
There are no orders for suppression.

Reasons

Both parties attended the hearing on 17 November 2023. Background

The tenant has lived at the property since April 2019, initially under a fixed term tenancy and now a periodic tenancy. The property is rural and comprises about 1,000 square meters in total. As well as the main dwelling there is a double garage and a woodshed. There was also a hot house and veggie garden until about February 2022, when they were removed by agreement. Temporary fencing was then put up around this area.

Since about December 2020 the landlord has been planning to build a minor dwelling at the northern boundary of the property (the current dwelling being close to the southern boundary). A resource consent is still to be issued. In late September 2023, the landlord notified the tenant that the building project was put on hold. The landlord offered to move the temporary fences which enclosed where the minor dwelling was to be built (and where the veggie garden had been). The tenant declined this offer in an email dated 27 September 2023.

On 24 July 2023, the tenant applied to the Tribunal seeking orders relating to (1) compensation for loss of land and amenities or a reduction in rent; (2) the provision of raised gardens; and (3) maintenance of the driveway.

As discussed at the hearing, to the extent that the tenant’s application sought to anticipate the effect of the intended building project on her tenancy rights, the Tribunal is unable to make any factual findings. Issues about whether the tenant will suffer loss of quiet enjoyment when the minor dwelling is built or would be entitled to compensation or reduction in rent, because there will be less land available for use, are hypothetical.

To the extent that the building project will change the land area included in the tenancy, it could be seen as a variation of the tenancy agreement that will need to be negotiated. Otherwise, building works which change the extent of the tenancy might be a breach of contract (see the Tribunal’s approach to the subdivision of a tenanted property in Pratt v Bunce [2020] NZTT Napier 4281386, 4281546). Loss of land or amenity / provision of raised garden bed

The tenant explained that she had agreed to the removal of the veggie garden in return for the provision of raised garden beds. This area had since been fenced off. The raised beds had not been provided and compensation of $3,000.00 was claimed.

The landlord said it had been agreed that the veggie garden would be removed to make it easier for the tenant to maintain the property. If the tenant had been able to maintain the land, it would have been unnecessary for the veggie garden to be removed prior to commencement of the building project. The landlord said they had offered to remove the temporary fencing around this area which the tenant had declined.

The landlord’s initial offer to build raised garden beds was made in the context of whether the tenant was going to remain in occupation after the minor dwelling was built. The landlord remains willing to build new veggie bins, but until the building project has the necessary Council consents, it is not clear where they can be positioned. The landlord has been advised that extensive earthworks will be needed to create a new dispersion field for the septic tank that is suitable for the existing residence and the additional minor dwelling. The landlord says if the beds are built now, they might have to be removed later.

I am not persuaded that there has been a loss of land or amenities in breach of the tenancy agreement. The veggie garden and hot house were removed by mutual consent, having become overgrown. The tenant has placed veggie bins in front of the North-facing deck instead, and the landlord has suggested that the tenant use an area at the front of the property around the septic tank (which is dug into a garden bed) for further planting. While the tenant says this area is overgrown and would require a lot of work to make ready, the landlord pointed to a photograph showing the area in a reasonably tidy condition at the start of the tenancy.

The landlord is also willing to remove the temporary fencing if the tenant wishes to use the area where the veggie garden and hot house used to be. The tenant says this is not practical because anything that is planted there might have to be removed if resource consent is obtained. This was one of the reasons why the veggie garden became untidy in the first place – the tenant said she stopped maintaining the area because it was going to be removed when the building project started.

The tenant had an obligation to maintain the lawns and gardens, irrespective of the timing of any proposed project. The obligation continues until the end of the tenancy. While the building project has created uncertainty, it did not directly affect the tenant’s continuing right to use the land, including the veggie garden.

Whether the parties agreed on removal of the veggie garden because the tenant was struggling with maintenance, or because the tenant was concerned about loss of use in the future, is not determinative. The landlord’s suggestions for other areas that can be utilised for planting may or may not compensate the tenant for any loss of amenity from removal of the veggie garden, but this is also beside the point in my view. The parties agreed (in effect) to remove part of the land area from the tenancy but the land is still available if the tenant wishes to use it. Driveway

The tenant said the gravel driveway needed re-metalling. There had been a lot of torrential rain and some of the metal had been washed away. As a result, she has to spray the driveway quite often to maintain it.

The landlord said the driveway had degraded but if properly maintained would not need re-gravelling. The gravel driveway between the existing residence and the garage will be redeveloped during construction of the minor dwelling. I understood that the southerly portion of the driveway is concrete and will not be affected.

The landlord’s concern relates to damage to the driveway over time if it is not properly weeded. The tenancy agreement provides that the tenant will mow the lawns and keep the gardens tidy. It does not say anything about the driveway. At the same time, section 40(1)(c) of the Residential Tenancies Act 1986 requires the tenant to keep the premises (which includes the land) reasonably clean and reasonably tidy. Given that weeding the driveway only requires spraying the surface, it is not a task which requires specialist skill or technical knowledge.

The driveway appears to be useable. If it was not, and required re-metalling, then that would be part of the landlord’s maintenance obligation. Further, if the driveway could not be maintained without very frequent weed spraying, the tenant’s obligations would likely be subject to an implied term that it must be reasonably practicable to maintain (see my comments relating to maintenance of a swimming pool by the tenant, in Wiki Property Management Limited v Tenant [2022] NZTT 4301945, 4304076).

The tenant noted that she uses organic sprays due to her son’s medical condition. I accept that the weed spraying does need to be performed with care in that sense. However, I am not satisfied that the driveway cannot be maintained by the tenant weed spraying every 4-6 weeks, which I consider reasonably practicable. Filing fee and name suppression

The parties will bear their own costs of the Tribunal process.

There are no orders for suppression.

Tenancy Tribunal case 4637969 — Tenancy dispute at 664A Onewhero-Tuakau Bridge Road, Onewhero, RD 2,

At a glance

Claims & awards

Tenancy Tribunal case 4637969 — Tenancy dispute at 664A Onewhero-Tuakau Bridge Road, Onewhero, RD 2,

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions