Published tribunal order
Tenancy Tribunal case 4666569 — Tenancy dispute
Decided 2 Nov 2023 · Published 2 Nov 2023 · Application 4666569
- Healthy homes
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay [The landlord/s] $666.11 immediately, calculated as shown in table below:
Reasons
- [The property manager/s] appeared for the landlord. The tenant appeared.
- The tenancy commenced on 13 May 2023 and is for a fixed term to expire on 19 May 2024. On 25 August 2023, the tenant filed a claim alleging the landlord had interfered with their reasonable peace comfort and privacy. On 31 August 2023, the landlord filed a counter claim for termination of the tenancy for failure to remedy two fourteen-day breach notices, water and wastewater charges, electricity charges, and the cost of servicing an elevator.
- The onus of proving these claims rests with the respective applicant. The standard of proof required is on the balance of probabilities. Each must establish, more likely than not, that that the other has breached the terms of the tenancy agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Should the tenancy be terminated?
- Under section 56(1) of the Act, 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.
- 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 fourteen days and establish that the tenant has failed to do so.
- The first notice was issued on 24 August 2023 requiring the tenant to remedy rent arrears by 07 September 2023. The rent summary produced by the landlord with the application is up to 31 August 2023. The tenant states that they cleared the rent arrears within the required period, and that the rent is currently up to date. [The property manager/s] confirmed this. No other notices for rent arrears have been issued. The application for termination for failing to comply with this notice is dismissed.
- The second notice was issued on 31 August 2023. The notice refers to a monetary amount of $649.84 but does not state what the amount relates to. [The property manager/s] states that the notice is for outstanding water and wastewater charges, electricity used by the tenant, and servicing cost of an elevator. This fourteen-day notice has not been remedied.
- The landlord has produced water and wastewater notices for the period 06 June 2023 to 05 October 2023. After hearing from [The property manager/s] and carefully analysing the notices, I am satisfied that the usage calculation is correct. Section 39(3) of the Act states that a tenant is responsible for all outgoings exclusively attributable to the tenant’s occupation or use of the property. The tenant does not dispute the claim and states that to date they have refused to pay as until recently they had not been provided with the actual notices and had instead been provided with a spreadsheet of all costs, some of which they dispute. I make the order for the outstanding water and wastewater charges.
- The disputed claims include one made by the landlord for electricity of $191.16. The landlord states that before the tenancy commenced, the property was without power. To facilitate the tenancy, the landlord arranged for the power to be connected in their own name, anticipating that once the tenant was able, they would arrange for the account to be switched over or a new account opened. [The property manager/s] states that on 07 June 2023, the landlord received a final account for the period 30 May 2023 to 07 June 2023 for $191.16. The tenant has refused to pay this, claiming they are not liable as the account was the landlords. The tenant states they attempted to terminate the landlord’s account and open a new one but were advised that only the landlord could close the account. It appears that the landlord had already taken steps and that the account would close on 07 June 2023.
- The issue is whether the tenant is liable for the power used between 30 May 2023 and 07 June 2023. In my view the answer is yes, although the account may not be in the tenant’s name, it relates to usage that is exclusively attributable to the tenant. I note however that the account has an opening balance of $124.28. There is insufficient evidence to award the landlord all, or part, of that opening balance. I award the actual charges for the period 30 May 2023 to 07 June 2023 of $66.88.
- The property spans three levels and has a service lift. At the commencement of the tenancy the lift was deactivated and was not included in the original agreement as being part of the tenancy. The tenancy agreement initially contained a clause to this effect. The agreement also included a clause that the landlord would be responsible for maintaining the garden. The parties state the tenant requested the lift be reactivated on the condition they would compensate the landlord for the service fee by maintaining the gardens for “three or four months.” The lift was serviced and reactivated on 03 May 2023, and subsequently used by the tenant to move furniture into the property. The service cost was $276.00. Shortly afterward the tenant complained that the maintenance of the gardens was too onerous, and that arrangement was unequal. On 19 June 2023, the parties entered into a new agreement, amending the relevant clauses to reflect that the tenant accepted liability for the maintenance of the elevator, and the landlord resumed responsibility for the gardens.
- This is another case in which the tenant does not appear to dispute liability for the service charge but again refused to pay arguing that the amount claimed had been combined with the other claims for water and electricity. After hearing from both parties, I am satisfied that the tenant is liable for the service fee as claimed. The elevator now forms part of the property. According to the Act the primary responsibility for maintaining the property rests with the landlord. On that basis the liability for maintenance required, over and above that covered in regular servicing, could potentially become contentious.
- The amounts claimed for water and wastewater, electricity, and the elevator service fee are awarded. The matters giving rise to the breach notice have been explained, with this being the first notice of its kind issued. Considering these matters, I am not satisfied that it would be inequitable to refuse termination. Termination is declined. Tenant’s claim interference with reasonable peace comfort and privacy
- Early in the tenancy it was discovered that the property’s curtains were in a poor condition. The property is large and has five bedrooms. The landlord hired a curtain specialist who cleaned and rehung curtains, replacing those irreparable with new curtains or blinds. The tenant’s primary complaint is the work, which took 3 or 4 days, was too lengthy. The tenant also states that the person hired was unprofessional and disorganised. The tenant states that the person used one of the tenant’s chairs to stand on damaging it. The tenant states that they were without bedroom curtains for more than one day and without kitchen and lounge curtains for two or three days. This is contested by [The property manager/s] who stated that the bedroom curtains were removed and replaced on the same day, with the kitchen and lounge curtains replaced the following day. [The property manager/s] states after determining the curtains which could be cleaned and rehung, measurements were required to be taken for the replacement curtains or blinds which were then made to measure.
- The tenant states that the carpet in the hallway was replaced, that it took three or four hours and they had to clean up after the carpet layer had left.
- The property must comply with the Healthy Homes Standards within 120 days of the tenancy’s commencement. Three bathrooms at the property needed fans installed. The tenant states that it took three days to complete work in just one of the bathrooms, with tradespeople on site for around three to four hours each day. [The property manager/s] states that the installation involved three trades: one to drill through concrete walls, one to install, and wire in the fan, and another to re-tile.
- The tenant stated that all the work had been inconvenient as they had to be present while the work was being completed. The tenant also stated that the property had been empty for a month, and that the landlord had ample time to complete any work prior to the commencement of the tenancy. [The property manager/s] denied that the tenant was required to be present.
- Section 38(1) of the Act provides that the tenant shall be entitled to quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title of the landlord.
- Section 38(2) of the Act states that a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
- The common law covenant for quiet enjoyment was set out in the case of Kenny v Preen [1963] 1 QB 499 (CA) in which Pearson LJ stated at 511: The implied covenant for quiet enjoyment is not an absolute covenant protecting a tenant against eviction or interference by anybody but is a qualified covenant protecting the tenant against interference with the tenant’s quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. I think the word ‘enjoy’ used in this connection is a translation from the Latin word ‘fruor’ and refers to the exercise and use of the right and having the full benefit of it, rather than to derive pleasure from it.
- In Lucas v Patterson [2005] DCR 76 the Court considered that the common law convent enshrined by section 38(1) of the Act had been widened in section 38(2) with the inclusion of references to peace, comfort, and privacy.
- In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated, “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents”.
- The question as to whether a tenant’s reasonable peace, comfort or privacy has been significantly impacted by the actions of the landlord may arise in situations where the landlord undertakes remedial work or renovation on the tenant’s property or a property nearby.
- In Verney v Team Group Rentals [2021] NZTT 4296277 the Tribunal at [56] stated: It is well established that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort, and privacy if they are not well managed.
- Each case will be therefore determined on the facts proven and require an objective assessment as to whether the nuisance or intrusion impacting the quality of the tenancy is over and above that which a tenant could be reasonably expected to endure in the circumstances.
- The tenant is seeking a rent reduction equivalent to four weeks rent. To award compensation against the landlord, the Tribunal must be satisfied that the interference has exceeded that which the tenant could reasonably be expected to endure.
- The burden of proof rests with the tenant to establish that the maintenance or repairs significantly impacted the quality of the tenancy.
- It is advisable for parties to discuss the scope of work and identify any potential delays prior to commencement. In this case there was correspondence between the parties prior to the commencement discussing the scope of the work. Parties may also agree on any compensation or rent reduction for inconvenience caused to the tenant.
- Regarding the curtains, there is no evidence of the damaged chair. The property is substantial. Three days to investigate, remove, clean, and rehang, or measure and make replacement curtains or blinds for the property is not unreasonable. I am not satisfied that the tenant’s privacy was adversely affected. The carpet was laid in less than one day, and there is no evidence of the mess left by the carpet layer. There were two other bathrooms at the property. In some cases, the installation of an extractor fan is straightforward and may be completed in one day or less. This does not appear to have been the case here, involving three trades. Apart from the duration of the work, there is nothing else to suggest that the landlord’s conduct, or those completing the maintenance, otherwise amounted to an interference with the tenant’s quiet enjoyment.
- I also note that the tenant is not obligated to be present while maintenance or repairs are conducted if they are given proper notice. Based on the evidence I am not satisfied that the tenant’s peace, comfort, or privacy was significantly impacted. The claim is dismissed. Other matter
- Another concern raised by the tenant involves a refusal by the landlord to provide information about the tenancy to a third party. The agreement allows the tenant to have four flatmates, the total number of occupants allowed is five. The agreement dated 19 June 2023, names these flatmates. There is no dispute that the tenant is solely liable for the rent. The tenant states that one of the flatmates left, and the suitable replacement candidate is presently unemployed and receiving a benefit. The tenant stated that to receive rent payments directly from Work and Income, the tenant must become an accommodation supplier. The tenant has produced a text message from a Case worker and Work and Income stating the requirement that the tenant provide a “letter from your landlord / property manager stating that they are aware of the boarding situation, and you have the right to receive board related payments.” They also require the landlord to provide identification. The landlord has been hesitant to provide a letter. The tenancy agreement clearly states who the tenant is and that they are allowed to have four named “flatmates.” I anticipate that Work and Income may also seek proof of identity to be satisfied that the landlord is bona fide and has the right to grant a tenancy. While I understand the tenant’s frustration there are no provisions in the Tenancy Agreement or the Act for the Tribunal to compel the landlord to provide the information sought. Costs
- Both parties seek reimbursement of their respective filing fees. The landlord has been partly successful and under section 102(4)(b) of the Act, I order reimbursement of the filing fee. The tenant has not been successful in their application and no order is made. Name suppression
- Both parties seek name suppression.
- 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.
- Neither party has been wholly successful. However, they have in my view each been substantially successful. The tenant has avoided termination. The landlord has successfully defended the claims made by the tenant. Accordingly, both are granted name suppression.