What was Tenancy Tribunal case 4654114 about?

The tribunal order states: The tenancy of Ashley Troyan Allatt at 4050A Great North Road, Glen Eden,

How much money was awarded in case 4654114?

Rent Arrears: $13,710.00 awarded to landlord

What type of tenancy dispute was case 4654114?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4654114?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794693-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4654114 about?

The tribunal order states: The tenancy of Ashley Troyan Allatt at 4050A Great North Road, Glen Eden,

How much money was awarded in case 4654114?

Rent Arrears: $13,710.00 awarded to landlord

What type of tenancy dispute was case 4654114?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4654114?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794693-Tenancy_Tribunal_Order.pdf.

4050A Great North Road, Glen Eden, Auckland 0602 Tenancy Tribunal Case 4654114 — Rent arrears

Claims and awards in Tenancy Tribunal application 4654114 — net $11,110.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 14/12/2023 (date of hearing	$13,710.00	Rent arrears to 14/12/2023 (date of hearing
Net award	$11,110.00
Total payable by Tenant to Landlord	$11,110.00

Claims and awards in Tenancy Tribunal application 4654114 — net $11,110.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 14/12/2023 (date of hearing	$13,710.00	Rent arrears to 14/12/2023 (date of hearing
Net award	$11,110.00
Total payable by Tenant to Landlord	$11,110.00

Order

The tenancy of Ashley Troyan Allatt at 4050A Great North Road, Glen Eden, Auckland 0602 is terminated, and possession is granted to Mayank Patel, at
59 pm on Sunday 28 January 2024.
Ashley Troyan Allatt must pay Mayank Patel $11,110.00 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $2,600.00 (6434161-012) to Mayank Patel immediately.
Ashley Troyan Allatt owes Mayank Patel an additional $4,178.57, which is rent due from 15/12/2023-28/01/2024.
Ashley Troyan Allatt is to pay normal weekly rent of $650.00 as and when it falls due. If the tenant fails to pay rent within 2 working days of the due date the tenancy at 4050A Great North Road, Glen Eden, Auckland 0602 will terminate and the landlord will have immediate possession of the premises and the balance of the debt will be payable immediately.
If the tenancy ends earlier by mutual agreement the amount revises downwards accordingly by the daily rate of $92.86.
Ashley Troyan Allatt’s application is dismissed.
Mayank Patel’s claim regarding the 63 day’s notice to end the tenancy (dated 27 August 2023) is dismissed.

Reasons

This matter was initially heard on 19 September 2023. A hearing was reconvened on 14 December 2023. The landlord attended in person. The tenant attended by teleconference. On the morning of the hearing, the tenant rang the court and advised that her son was unwell and was showing symptoms of Covid and so was she. However, she had not been able to do a Covid test. In the circumstances and in light of potential health risks, the tenant was given the opportunity to attend the hearing by teleconference.
The landlord has filed two applications with the Tribunal seeking to terminate the tenancy for rent arrears, a possession order, exemplary damages due to the tenant failing to quit the premises following notice to end the tenancy and a refund of the bond.
The tenant has filed a cross application as an equitable set-off to termination due to flooding and the condition of the premises. The tenant seeks compensation of $25,000, a work order, and a rent rebate.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.” The landlord’s applications

Should the tenancy be terminated?

The landlord has applied to terminate the tenancy for non-payment of rent.
The Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that the rent was at least 21 days in arrears on the date the application was filed. See section 55(1)(a) Residential Tenancies Act 1986 (“RTA”).
The Tribunal is satisfied that rent was at least 21 days in arrears on the date the applications were filed.
The order for termination is deferred until the Tribunal has addressed the tenant’s defence of an equitable set-off against the landlord’s claim (see below).

How much does the tenant owe?

The landlord provided rent records proving rent arrears owing to 14 December 2023 of $13,710.00.
The tenant disputed the rent arrears claimed. However, the tenant has not provided any evidence that she has of rent payments she has made that are not recorded in the landlord’s rent record, as suggested at the first hearing.
It was also noted at the first hearing that the tenant had not paid rent since the end of July because on 2 August 2023 and again on 3 August 2023 there was substantial flooding of the premises and the effects of the flooding have not been fully remedied. At the time, the landlord claimed rent arrears outstanding to 21 September 2023 of $5,910.
The tenant has not made any payments of rent since and rent arrears have significantly increased.
Ultimately, the amount of rent owing will be decided pending the outcome of the tenant’s claim. This will be addressed further below.

Did the landlord provide a valid termination notice?

The landlord has applied for possession of the premises following the termination of the tenancy.
On 27 August 2023, the landlord issued the tenant with a 63 days’ notice to terminate the tenancy with the end date being 29 October 2023. The reason for the termination is that the owner or a member of the owner’s family requires the premises as their home.
However, there was an issue as to whether the notice was properly served on the tenant. The tenant claims she did not receive the notice.
The notice was served to the tenant’s email address for service as recorded in the Tenancy Agreement and via messenger at WhatsApp.
It is “sufficient” to serve a notice to an email given as an address for service (section 136(1)(d) RTA). However, it was not clear whether the tenant’s email address for service was in use at the time. There is evidence that earlier notices sent by the landlord to the tenant’s email address for service were undeliverable.
In the end, the point of service was to bring the documents to the attention of the person being served and the issue was whether the notice was received.
I am not satisfied the notice was properly served on the tenant by email because the tenant denied receiving the email and it was not proved that it was actually received by the tenant.
Service of notice by WhatsApp is not a specified method of service under the RTA. Notice by WhatsApp as “sufficient” service is questionable. In reality, in order to ensure there is no ambiguity about whether notice has been effective, a notice served in person, by post and email is preferred.
I am satisfied the service of the notice to end the tenancy dated 27 August 2023 was effective. The notice is not upheld. The landlord’s claim in this regard, including the claim for exemplary damages for failing to quit the premises following notice and associated losses are dismissed.
The landlord has subsequently issued the tenant with a 90 day notice on 29 October 2023, with the end date being 28 January 2024. This notice is valid and effective service has taken place. The tenant’s application

Has the landlord failed to comply with their obligations?

Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises, and comply with any relevant enactment in relation to buildings health and safety and comply with the Healthy Homes Standards 2019.
This duty requires landlords to take prompt and appropriate steps to carry out repairs when they become aware of the need for them : “... the obligation of the landlord, under section 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be.” (Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085-001431, 24 February 2010; see also Merwald Real Estate v Lanauze DC Auckland, MA151-89, 2 May 1989).
If a landlord fails to meet this duty, the Tribunal may award compensation to the tenant. A breach of this duty is also an “unlawful act”, per section 45(1A) RTA. This means that if a landlord intentionally breaches the duty, the Tribunal may award exemplary damages of up to $7,200.00. See section 45(1A) and Schedule 1A RTA.
Section 59(4)(a) of the RTA provides for rent abatement where premises are partially destroyed or so seriously damaged as to be uninhabitable.
Where the Tribunal finds the landlord has failed to comply with any of the obligations under section 45(1)(a)-(ca) RTA, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
Flooding occurred at the premises on 2 August 2023 and 3 August 2023 caused by two burst pipes in the roof space. One above a bedroom and one above the kitchen.
There is no evidence to suggest that the landlord was at fault for the failure of the pipes and therefore he is not responsible for the immediate aftermath of the flooding.
The landlord is responsible for cleaning up the premises, drying them out and restoring them to the condition they were in before the flooding. If the landlord fails to do these things within a reasonable time or at all, he may be liable to pay the tenant compensation and, if there have been unlawful acts, the Tribunal may award the tenant exemplary damages.
The tenant asserts that the effects of the flooding still remain outstanding and the impact on her and her family have worsened. This has cost a significant loss and expenses affecting her ability to afford the rent. The tenant claims the landlord has not provided any dehumidifiers or fans and that the heat pump has not worked since the start of the tenancy. She said that she was scared to make a complaint about the heat pump.
The tenant says she has not had the use of the kitchen since the flooding occurred. She said that the kitchen has been without power since then and she has not been able to use the cooker. Consequently, she has had to go out for prepared food for her and her family. The tenant also says her fridge has not worked since the flooding.
The landlords arranged for the water pipes and the collapsed ceilings to be addressed the same day the flooding events occurred. However, the tenant did not allow access for further work to be done, this included installing dehumidifiers or fans to dry the carpet and property. This was confirmed by the evidence from Landmark Group Limited.
The landlord has made several attempts to investigate, and put right, whatever the problem may be, but the tenant has not consented to access or an inspection.
An assessment was made by the landlord’s insurer regarding the damages, the insurance assessor confirmed by email on 29 August 2023 to the landlord that the “damages would not have rendered the property uninhabitable (ie, all facilities are usable, such as kitchen and bathroom)”.
The tenant has not provided any objective evidence to support her view that the kitchen is not usable or that the heat pump is not working and as such, I cannot be satisfied that her claim is proved. The lack of any notice to the landlord regarding the heat pump not working means I do not find it evidenced that this was a failure to maintain by the landlord as he was not notified.
In terms of the tenant’s fridge, a tenant is responsible for insuring their own personal property and a landlord cannot be held responsible for damages to a tenant’s personal property that occur as a result an incident outside of its control. Therefore, I cannot award the tenant compensation for replacement or repair of her fridge damaged during the flood.
The evidence raises the question of mitigation. Under section 49 RTA, where any party to a tenancy agreement breaches any of the provisions of the agreement or of the Act, the other party is required to 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.
In this case the Tribunal is not convinced that the tenant has adequately mitigated her loss. The gravity of the issues now experienced by the tenant could have been avoided, if access to carry out the necessary work was given at the outset. The tenant has failed to allow that opportunity.
While this was considered a serious claim, the tenant has simply not provided sufficient evidence to substantiate the claim despite being given ample opportunity by the Tribunal in the first hearing to do so.
I am not satisfied that the property was uninhabitable as a result of the flooding, and therefore the claim for a rent rebate is dismissed. I find that the landlord was willing to investigate and remedy the effects of the flooding, but the request was not progressed by the tenant. Accordingly, I do not find a breach of section 45. Given that the tenant has the burden of proof, I find the evidence falls short and therefore the claim is dismissed. It follows that the claim for compensation, exemplary damages and a work order are also dismissed. Equitable set-off
An equitable set-off may exist where a cross-claim can be set off against a claim for rent, even if it is unliquidated, provided that it arises under the lease itself or directly from the relation of landlord and tenant or out of an agreement for lease.
The Court of Appeal in Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 stated: ...a tenant has a right to set off against rent cross claims which arise not only out of the same contact as the claim but also where the cross-claim arises directly out of the relationship of landlord and tenant or out of an agreement for lease, or otherwise where there is a sufficiently close connection between the transaction giving rise to the cost claim for the equitable doctrine of set-off to apply.
The High Court in O’Shea v Brown Auckland AP 110 – PL 01, held that equitable set-off applied to residential tenancies and that the tenancy Tribunal must consider any equitable set-off before termination of a tenancy.
In this case the landlord is owed rent arrears of $13,710.00. Having carefully considered the tenant’s claim for a 'set-off' I find that she has not proven that the rent arrears owed should be reduced, or at least reduced by an amount sufficient to make the rent arrears less than 21 days. No awards have been made in the tenant’s favour. The landlord’s claim for termination due to rent arears is granted. The tenant’s tenancy will terminate on 11.59pm on Sunday 28 January 2024. Given the delayed termination, I have awarded rent due to the termination date which I consider reasonable in the circumstances.
I further note that I am satisfied that the landlords and their agents are entitled to access the property for the purpose of remedying the effects of the flooding (upon 24 hours notice) under section 48(2)(b) RTA and for the purpose of inspection upon 48 hours notice) under section 48(2)(d) RTA. The tenant is to co-operate with the landlords and allow access following proper notice given. Proper notice given of the intention to inspect does not require the tenant’s permission before the landlord can act on the notice. Filing fee and suppression orders
As neither party has been wholly successful in their applications, I decline to order either party to reimburse the filing fee and I also decline to order suppression orders.

Tenancy Tribunal case 4654114 — Rent arrears at 4050A Great North Road, Glen Eden, Auckland 0602

At a glance

Tenancy Tribunal case 4654114 — Rent arrears at 4050A Great North Road, Glen Eden, Auckland 0602

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

How much does the tenant owe?

Did the landlord provide a valid termination notice?

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

How much does the tenant owe?

Did the landlord provide a valid termination notice?

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions