What was the outcome of Tenancy Tribunal case 4639420?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4639420?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4639420?

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

Where can I read the official tribunal order for case 4639420?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9345965-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4639420?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4639420?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4639420?

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

Where can I read the official tribunal order for case 4639420?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9345965-Tenancy_Tribunal_Order.pdf.

3 Ferney Place, Richmond Heights, Taupo 3330 Tenancy Tribunal Case 4639420 — 14-day notice

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The Tribunal declines to terminate the tenancy as it would be inequitable to order termination.
The Tenancy agreement is varied to include a term that the dog currently living at the property is permitted at the property on the condition that the dog lives outside only, in the fenced section, that faeces are disposed of in a timely manner (at least twice per week) and that the tenant is responsible for any damage to the section or property that occurs, including the cost of resowing grass.
If the dog causes any damage to the property, or there is any evidence that it is living inside or disturbing the neighbours, then a further application to the Tribunal can be made to reconsider the matter.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s 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. See section 56(1) Residential Tenancies Act 1986.
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 tenancy began on 24 May 2017. The tenancy agreement states, “No pets unless authorised”.
Ms Flight said she had two cats living with her at the beginning of the tenancy, and she discussed this with the property manager Ms Hoera, who said that would be ok. Ms Hoera cannot recall the discussion; she says she became aware of the cats a short time after the tenancy began and the owner reluctantly agreed they could stay. That agreement remains in place and the cats are therefore “authorised” in terms of the no pet’s clause.
About three years ago Ms Flight discovered an abandoned puppy. When she was unable to locate his owners, she decided to keep him as a family pet. She registered him, took him to the vet and had him microchipped and neutered. She is a solo mother who lives on her own with three children. The family essentially adopted the puppy.
Ms Flight says that she never tried to hide the fact that she had the puppy and she understood Ms Hoera was aware that he was living at the property and did not raise any objections. She said that while the issue was not directly discussed she says she thought she had permission to have him there.
Ms Hoera says she recalls seeing the dog on one occasion but did not think he belonged to Ms Flint. When she became aware that the dog was living there, she recalls telling Ms Flight that “the dog has to go”. Ms Flint does not recall that conversation and it is not recorded in any notes. No written confirmation of the conversation is therefore available.
Earlier this year, the owner went to the property and arranged to have it painted. He was concerned when he saw evidence of the dog and then the painter raised issues about dog faeces in the yard. The landlord says that additional cleaning of the exterior of the property was required, prior to painting, because the dog was living there. Ms Flint was sceptical that any additional cleaning of the house was required and said she is generally disciplined about picking up and disposing of dog faeces, she said the painter had a “queasy tummy” and that is why he asked for the dog poo to be removed.
The tenant has breached their obligations by having the dog at the property. The tenancy agreement sates no dogs unless authorised. There was no discussion let alone authorisation and therefore no agreement or authorisation and a clear breach.
The landlord served a 14-day notice on the tenant on 12 May 2023, and the tenant did not remedy the breach within the required period.
Ms Flight said that the dog remains at the property, he is a much-loved family pet, and she will leave rather than get rid of him.
Ms Flint applied to the Tribunal disputing the 14 day notice, she submits that her dog has been at the property for close to three years, and no issue was ever raised despite numerous inspections over this time, he is part of the family and security and comfort for her and the children, particularly her younger son who suffers mental health issues and has a strong bond with the dog.
The landlord cross applied requesting that the tenancy be terminated because of the breach and failure to remedy.
The landlord also raised an issue around the tenant providing a key to the garage so it can be inspected during routine inspections. The lock was changed when the tenant’s son installed a gun safe (as an additional security provision). The parties agreed that the tenant will provide the landlord a garage key within 7 days. I am not required to consider that issue further.

Is it fair to end the tenancy because of the breach?

A breach of the provisions of the tenancy agreement banning pets is established. The tenant is refusing to remedy the breach, which she could do by re-homing the dog.
The Tribunal must therefore consider whether it would be equitable (or fair) to refuse to terminate the tenancy as requested. If the termination is not ordered the Tribunal must go on and consider the terms on which the dog can remain at the property and the tenancy continue. That would require the Tribunal modifying the tenancy agreement to essentially provide the authorisation the landlord has declined to provide.
In the particular facts of this case the arguments for and against termination are finely balanced.
On the one hand the tenant is pleading for a much-loved family pet, that is causing minimal harm (the photographs of the dog poo are the only evidence of harm at all, and the tenant is prepared to undertake to remove the offending poo as frequently as she is required to do). While she also said she would pay an additional dog bond, that is not permitted by the RTA which limits the bond to 4 weeks rent and does not provide for additional bond (in fact it is an offence for a landlord to require or accept a bond greater than the stipulated 4 weeks).
On the other the landlord is requesting enforcement of a clause that the parties agreed to when the agreement was signed, that the tenant has breached. The owner submits that they have already conceded agreement to the tenant having cats and the dog is essentially a step too far.
The owner lived at the property previously, does not have pets and wants to rent to tenants without pets either.
Basic contract law says he is entitled to have the no pet’s clause in the agreement. However, the tenant’s submission that ‘no pet’ clause is not automatically enforceable and should not be enforced in this case, requires consideration. Section 11 Act generally to apply despite contrary provisions
Section 11 (1) of the RTA states that an 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 then arises as to whether the ‘no pets’ provision is inconsistent with any provision of the RTA.
Section 40 defines a tenant’s responsibilities. None of them directly restrict a tenant’s right to have a pet. The tenant acknowledges her obligation around cleaning and that if damage occurs, she will pay for it.
Because the RTA neither specifically prohibits nor permits a tenant to have pets, the issue becomes whether a landlord has contractual freedom to impose a restriction on the tenant. The answer depends on whether the restriction breaches the tenant’s general rights in s 38(1) and (2) RTA. Quiet enjoyment
Section 38 (1) provides that 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. And subsection (2) states 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 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 the tenant and her family have with the dog, it is also arguable that a blanket prohibition could breach her right to ‘reasonable ... comfort’.
If this is accepted, then the question then arises under s 11(1)(b) whether the restriction on pets the landlord is requesting should be permitted.
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).
The evidence does not show there is any real risk of the dog causing damage to the property. The landlord’s anger that the tenant did not seek permission when she should have is perhaps understandable. The tenants reply that she thought the property manager had provided some form of implied consent by not objecting is also relevant. It is likely that the truth is she did not ask permission in case the answer was no.
A blanket ‘no pets’ policy is not in my view automatically lawful and enforceable.
The requirement that the tenant seek authorisation should be expanded to include an implied provision that the landlord may not unreasonably withhold consent or attach unreasonable conditions.
In determining that it is reasonable to allow the pet to stay on the conditions outlined above, the following factors are relevant:
the dog is medium sized
no evidence was provided to show that he has caused any damage to the premises or disruption to the neighbourhood; (his poo can be regularly disposed of and the tenant has undertaken to do that)
he is chipped, registered and neutered;
he lives outside only
he was obtained for security and emotional health and wellbeing; he is a therapy dog for the tenant’s younger son.
the tenant has now owned him for three years and he has become an integral member of the family.
He is such a loved pet that the family is prepared to give up their long-term rental so they can keep him. That speaks volumes about their love for him.
Consent was not sought; however, the tenant genuinely thought the property manager knew about the dog and was agreeable to him being there. Just as no written agreement was obtained regarding the cats, she thought it was not necessary as regards the dog.
In summary I decline to terminate the tenancy because to do so would in my view be a disproportionate sanction.
The tenant and landlord both spoke of the rental housing shortage in Taupo and that rental housing where animals are permitted was even more difficult to find.

Tenancy Tribunal case 4639420 — 14-day notice at 3 Ferney Place, Richmond Heights, Taupo 3330

At a glance

Tenancy Tribunal case 4639420 — 14-day notice at 3 Ferney Place, Richmond Heights, Taupo 3330

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is it fair to end the tenancy because of the breach?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is it fair to end the tenancy because of the breach?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions