What was Tenancy Tribunal case 4654349 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 4654349?

Compensation: Breach Quiet Enjoyment: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4654349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4654349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9449317-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4654349 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 4654349?

Compensation: Breach Quiet Enjoyment: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4654349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4654349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9449317-Tribunal_Order_Redacted.pdf.

582 Fergusson Drive, Trentham, Upper Hutt 5018 Tenancy Tribunal Case 4654349 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4654349 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach quiet enjoyment	$500.00	Breach quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Claims and awards in Tenancy Tribunal application 4654349 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach quiet enjoyment	$500.00	Breach quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Order

The Tribunal orders suppression of both parties’ names and identifying details. The Tribunal also suppresses details that may identify [The Property Management Company].
[The landlord/s] must pay [The tenant/s] $520.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The tenants attended via teleconference as they no longer reside in the [City 1] region. The landlords attended in person, as did the property manager at the relevant time.
The tenants have brought claims against the landlord in relation to overpayment of power and breach of quiet enjoyment. The tenants also say that the landlord is unlawfully letting part of the premises as commercial premises. The tenants seek compensation of $2,500 (which is all the rent paid) for the breach of quiet enjoyment. They seek compensation for moving costs, ($5,738.00 from [City 1] DescriptionLandlordTenant Compensation: Breach quiet enjoyment $500.00 Filing fee reimbursement $20.44 Total award $520.44 Total payable by Landlord to Tenant $520.44 to [City 2] and $4,749.89 from [City 3] to [City 1]). They also seek compensation for loss of income due to having to move.
Originally, the named party was [The Property Management Company] as agent for [The landlord/s]. However, I understand that [The Property Management Company] have terminated their agreement with the owners and no longer act as their agents.
In these circumstances, and because in any event the owners would be ultimately liable as principals, I have amended the application to name only the owners as landlord. General Approach in the Tribunal
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenants) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Summary of Tenant Evidence
This tenancy commenced on 28 July 2023. It was intended to be for a 12-month fixed term.
The tenants said that after a couple of weeks they realised that there were two businesses operating in a workshop area that was connected to the premises. One was a car detailing business and the other was a collision repair business.
The tenants say that both businesses appeared to be operating from the workshop.
On 9 August 2023 the tenants said that one of the men knocked on the door and asked them to flick the switch on their fuse box because his power had gone out.
It was at that point that the tenants realised that they were on the same power connection and the businesses were using power they had paid for.
They had concerns about that and sent the property manager an email later that night.
The tenants said that the owner first advised that they could seek reimbursement from the other person. Another suggested solution was to deduct $50 per week from the rent.
The tenants were not satisfied with that response and went back to the property manager. They stated that they believed it was illegal for a commercial business to be running from the workshop and did not see why they had to deal with it at all.
In addition, they said that the car detailing business was operated at all hours of the day and night and there was persistent excessive noise that was interfering with their quiet enjoyment. They said that he worked there 6-7 days a week and was making loud noises using his machine polisher, water blaster and vacuum until 10pm most days.
The tenants have provided video evidence that indicates the type and volume of noise that they say was consistent throughout the tenancy. They say that it meant they were unable to really use the backyard at all because of the constant noise.
In addition, the tenants said that the man running the detailing business had behavioural issues that concerned them. They said he often acted aggressively, that he would frequently swear and carry on. They said that he told them he had been in jail previously and he also asked them to become involved as a witness and asked them to talk to police on their behalf to confirm his presence in the workshop on a particular occasion. They said they found all of this intimidating and they felt unsafe.
The tenants say that they checked with the Council and were advised that the premises were zoned as residential use only. Therefore, there should not have been any commercial activity going on at all.
They said that the person running the collision repair business also came over to ask them to turn the power back on. They said they later found out that the collision repair business had sublet to the car detailing business.
Eventually, the tenants say the stress of it all meant they asked to leave the tenancy and they did so on 22 August 2023.
They said that they ended up moving to [City 2] because they had concerns that the person operating the car detailing business would find out where they were if they remained in the [City 1] region. That is because their own business details (and contacts) were printed on their work vehicles.
The tenants said that prior to 22 August 2023 they were aware that the person operating the car detailing business said told them he had been “kicked out” and left for a few days, however he later returned and continued operating. The tenants provided a photograph and video taken on 20 August 2023 which does show someone who appears to be operating machinery in the workshop.
The tenants say that they believe the landlord knew about the situation. They say this is because the car detailing operator told them that he had spoken directly with the owner.
The tenants say that they continued to relay the issues to the property manager in an effort to sort things out.
They said the whole experience was incredibly stressful, leading to the decision to have to move. In addition, they say their health suffered as a result of the stress. Summary of Landlord Evidence
[Landlord 1] spoke for both landlords.
He said that he had a separate contract with the owner of the collision repair business, who was a neighbour of his, to use the workshop area for storage only.
He said that he had been advised by the property manager that he could only rent it as storage and that is what he did. He says he had no knowledge that any business activity was being carried out at the premises. That contract was signed around February or March 2023.
The landlord indicated he could provide a copy of the contract to confirm what he said. Following the hearing he emailed through that agreement.
The document he provided is a standard residential tenancy agreement form between the landlord and [The collision repair business] [The collision repair business]. It is unclear why a residential tenancy agreement has been signed because there is no residential tenancy, and the workshop is not consented for use as a residential premise. Most of the sections in the agreement (requirements relating to residential tenancies) are crossed out and marked “N/A”.
The premises that is the subject of the agreement is noted as: Storage Area (back garages and tiny house) [Address]
[Landlord 1] said that there was never any commercial lease in place and that he was aware the area was zoned for residential use only.
He said the first he knew either about business activity or that there had been a sub-lease to another business was on 9 August 2023 when the tenants emailed the property manager.
He said that he had never given permission for [The collision repair business] [The collision repair business] to sublet the workshop.
At first his focus was on the issue of power sharing. He said that with the previous tenants he had asked them to just take a photograph of any power being used (although he emphasised this was for a storage unit, not a business) and he would recompense them for this.
He said the previous tenants never mentioned there was business activity being carried out in the workshop.
He said that when he found out he contacted the collision repair owner and told him that the area was not allowed to be used to conduct business but for storage only. He said that he told them the other business needed to get out.
He said that he wanted to meet the tenants to explain and try and resolve the situation, but this did not happen.
[Landlord 1] said that he had a text message (which I have sighted) which showed that the collision repair owner had instructed the car detailer to leave the premises. He understood that he had stopped his business as of 14 August.
However, he did concede that the car detailer may have gone back to finish some jobs and pack up his things after that date. He says however that any commercial activity had definitely ceased by 22 August 2023.
[Landlord 1] said he wanted to assist the tenants. He said that he agreed they could end the tenancy early without any penalty for breaking the fixed term contract.
He has reimbursed them for the full amount of power, in the amount of $225.23.
He also offered to pay moving costs up to an amount of $1500.00 to try and help them but he did not even get the opportunity to talk with them.
[Landlord 1] is adamant that he did not know about the car detailer and has never spoken to him.
[Landlord 1] also said that this whole experience has also been stressful for him and his wife, and that she has had difficulty sleeping since the application was brought in the tribunal. He said he was perfectly willing to help the tenants but could not understand why they were asking for so much, beyond what he felt was his responsibility.

Was there a commercial lease/Is this unlawful residential premises?

[Landlord 1] claims there was never any commercial lease in place and the contract was only for storage.
However, while he may not have entered into a written agreement for a “commercial lease” neither can he claim that there was a residential tenancy in place, notwithstanding the form that was signed by the parties.
In making any assessment regarding the nature of the agreement, the Tribunal will consider the substance of the agreement between the parties rather than the labels they have applied.
A garage and workshop clearly cannot be occupied for residential purposes. The agreement was between the landlord and a limited liability company ([redacted]). Any lease of land for any business use (including plant or equipment storage) is commercial.
I therefore find that the arrangement between the landlord and [The collision repair business] was commercial in nature.
Having said that, the mere fact that the landlord may be in breach of local zoning laws does not automatically entitle the tenants to compensation.
The Tribunal does have the power to declare premises to be unlawful residential premises.
Section 78A(2) of the Residential Tenancies Act 1986 (“the Act”) states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation
That is not the case here.
The premises occupied by the tenants is lawful and is consented for residential use. The garage area is not consented for residential use and is not occupied by anyone as their place of residence.
Accordingly, while I accept that the landlord has likely breached the zoning laws by renting the workshop and garage to [The collision repair business], this does not make it unlawful residential premises.
Accordingly, this claim is dismissed. Overpayment of Power
Section 39(3) of the Act provides that a tenant is only responsible for outgoings that are “exclusively attributable” to their occupation of the premises or use of the facilities.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) of the Act means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
Practically speaking, in a situation like the present, that means that the landlord should have the electricity account in their name and may only seek reimbursement from the tenant for actual usage.
In the present case, the landlord failed to make proper arrangements to ensure he complied with section 39 of the Act. Accordingly, this was a breach of the Act.
Having said that, the landlord accepted that he was in the wrong and has already reimbursed the tenants for power paid.
Therefore, while the tenants have succeeded in this claim, there has already been a remedy and so I decline to award any further compensation. Breach of Quiet Enjoyment
Section 38(2) of the Act provides 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.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A of the Act.
Section 45(1)(e) of the Act states that the landlord shall take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
In this case, there is no suggestion that the landlord themselves breached the tenants’ quiet enjoyment. Rather the question is whether the landlord either permitted or or failed to take reasonable steps to ensure that his commercial tenants did not.
I acknowledge that the entire arrangement between the landlord and [The collision repair business] is not particularly satisfactory.
I accept that there is at least a possibility that the landlord must have known that either [The collision repair business] or the car detailing service were using the premises for commercial activity prior to it being raised on 9 August 2023. A simple drive by of the premises would likely have revealed the true situation.
However, I am satisfied that the landlord became aware of the situation by at least 9 August 2023.
I accept that the landlord then spoke to [The collision repair business] and reiterated that the premises were for storage only and that no business activity was to take place. I also accept that he advised that the car detailing business would need to vacate the premises.
I find that the landlord did not permit the neighbour to interfere with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
However, I do find that the commercial tenants did interfere with the reasonable peace, comfort, or privacy of the tenant regardless.
I have seen the video dated 20 August 2023. I accept that video is representative of the type of noise that would have been coming from the workshop. The video is taken from the backyard of the tenant’s premises, just outside the back door. I accept that it would not have been possible for the tenants to property utilise their outdoor space with that type of noise going on, and I also accept that the noise would likely have been audible inside the house, at least in rooms on that same side of the house.
I accept the tenants’ evidence that this went on for extended periods of time including into the evening hours.
This does in my view amount to a breach of quiet enjoyment.
I then turn to consider whether the landlord took all reasonable steps to prevent this.
On balance, I find that the landlord did not take all reasonable steps to prevent the breach of quiet enjoyment.
The landlord’s evidence was that he spoke to the commercial tenant. He provided a copy of a text message dated 14 August 2023 in which it was suggested that the car detailing company had been “kicked out”.
The landlord said that he relied on what he was told by [The collision repair business] and that they were the ones who dealt with the car detailing business.
The landlord said he accepted that the car detailer was still at the premises on the date of the video and photograph (20 August) and that he may not have left “completely” until 22 August.
The landlord said that he resolved the issue as soon as he could.
However, the landlord did not attend the premises to find out the true situation (nor did he direct the property manager to do so on his behalf). The landlord accepted he had not considered trespassing the car detailer. No other steps were taken to immediately remove the car detailing business. On the landlord’s own evidence almost two weeks passed before the business was completely removed from the premises.
Simply talking to [The collision repair business] and hoping for the best was not in my view taking “all reasonable steps” to prevent a breach of the tenants’ quiet enjoyment.
Rather, it seems that because the landlord had been told the tenants were moving out in any event, he did not press the issue.
Accordingly, I find that this claim is proved.
I do not consider it is appropriate to award compensation for the period prior to 9 August 2023. That is because I am not satisfied that the landlord was aware of the issue before that.
However, I do consider it appropriate to award compensation for the period 10 August up to 22 August 2023 when the tenants vacated. It is not appropriate to order repayment of the entire rent paid in that period, because the tenants still received the benefit of having somewhere to live for that time. I consider $500 to be an appropriate amount, which is 5 days’ rent. Other Monies Sought
I have more difficulty with the other amounts sought by the tenants. The compensation for moving costs and loss of income are not directly linked to any breach of the Act by the landlord.
Although I have found above that the landlord did not take all reasonable steps to prevent a breach of quiet enjoyment, the amount I have already awarded is appropriate to compensate the tenants for that breach.
The tenants in this case have also been allowed to terminate the fixed term early, without penalty and without any liability for rent until new tenants can be found, as is usually the case.
Moreover, the landlord offered, although he was not legally obligated to do so, to cover moving costs up to $1500.00. This appears not to have been accepted by the tenants.
The landlord cannot be liable for the tenant costs in moving to [City 1]; that was entirely a choice made by the tenants and had nothing to do with the claims before the Tribunal.
Nor is the landlord liable for the tenants’ costs to move to [City 2]. Although I accept that their decision to move may have been motivated in part by the issue with the commercial tenants, the reality is that the entire tenancy lasted less than one month. The tenants made the choice to move and did not give the landlord a reasonable opportunity to remedy the issue before apparently making that decision.
For the same reasons, a landlord is not liable for loss of income if a tenant decides to move.
The claims for compensation for moving costs and loss of income are therefore dismissed. Suppression and Filing Fee
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, the tenants partially succeeded, and the landlord has also succeeded in defending some parts of the claim. As there are no countervailing reasons not to do so, I therefore grant suppression of both parties’ names and identifying details.
Given there was no evidence of any wrongdoing on the part of the property management company I also order suppression of their name and identifying details.
Given the partial success by the tenants I also order reimbursement of the filing fee. J R Smith 22 September 2023

Tenancy Tribunal case 4654349 — Tenancy dispute at 582 Fergusson Drive, Trentham, Upper Hutt 5018

At a glance

Tenancy Tribunal case 4654349 — Tenancy dispute at 582 Fergusson Drive, Trentham, Upper Hutt 5018

At a glance

Award balance

Claims & awards

Order

Reasons

Was there a commercial lease/Is this unlawful residential premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was there a commercial lease/Is this unlawful residential premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions