What was Tenancy Tribunal case 4677771 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 4677771?

Filing Fee: $20.44 awarded to landlord; Loss Of Amenity: $694.29 awarded to landlord

What type of tenancy dispute was case 4677771?

The primary dispute was Leaks. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4677771?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10305664-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4677771 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 4677771?

Filing Fee: $20.44 awarded to landlord; Loss Of Amenity: $694.29 awarded to landlord

What type of tenancy dispute was case 4677771?

The primary dispute was Leaks. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4677771?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10305664-Tribunal_Order_Redacted.pdf.

280 Main Road, Kumeu 0810 Tenancy Tribunal Case 4677771 — Leaks

Claims and awards in Tenancy Tribunal application 4677771. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Loss of amenity	$694.29		Loss of amenity
Filing fee	$20.44		Filing fee

Order

The tenant’s name and identifying details must not be published.
Blair McDonald as trustee for the McDonald Family Trust must immediately pay [the tenant] $714.73 as calculated in the table below: DescriptionLandlord Loss of amenity$694.29 Filing fee$20.44 Total amount landlord must pay$714.73

Reasons

The tenant attended the hearing in person.
`Joseph Voordouw and Grace Shi attended for the landlord’s agent.
The tenant claims the landlord failed to maintain the premises in respect to a noisy freezer generator and issued him with a retaliatory notice when he complained about the noise.

Did the landlord fail to maintain the premises?

Legal principles

Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 1 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 2 “...the obligation of the landlord, under s 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 might be...” 1 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 2 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15].
Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 3 However, Landlords have an independent obligation to repair defects that are apparent from observation: 4 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The premises are adjacent to commercial premises also owned by the landlord.
The landlord’s commercial tenant installed an external freezer motor near to the tenant’s bedroom. The motor would intermittently noisily jerk into life for a short time every hour or so, disturbing the tenant’s sleep.
The tenant reported the problem on 1 August 2023, but the issue was not remedied prior to his vacating on 5 September 2023. The commercial tenant could not offer a practical solution, so the landlord allowed the situation to continue.
The tenant’s basic tenancy rights were breached in several ways by the continuing nuisance. The landlord was obliged to ensure that his commercial tenant did not impinge on this tenant’s reasonable peace, comfort, or privacy. Under s 38(2) of the RTA: 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.
Similarly, under s 45(1)(e) of the RTA, the landlord must: 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.
Further there is an implied term in any tenancy agreement that the landlord will ensure the premises continue to provide a reasonable standard of amenity. A reasonable standard of amenity must include as a minimum that the conditions will allow a reasonable person to sleep without excessive noise. Put another way: when the tenant agreed to rent the premises, an important part of the tenancy was the legitimate expectation he would be able to sleep without excessive machine noise coming from the commercial premises.
The landlord failed to ensure the premises were free from excessive noise. 3 RTA, s 40(1)(d). 4 See n 1.
That failure falls within the landlord’s duty to maintain the premises in a reasonable state of repair. It cannot be said the residential premises is in a reasonable state of repair when the noisy unit is attached to the building and the noise issue could be remediated by removing it.
It was a breach of the implied term of the agreement.
The landlord was in breach of s 38(2) because he permitted an interference with the tenant’s reasonable peace and comfort.
It is arguable that the landlord did not take all reasonable steps to prevent his other tenant’s interference given the seriousness of the interference.
I find the landlord liable for the noise nuisance. Remedy
Exemplary damages are not available for the unlawful act because the landlord’s act was not intentional. 5
Compensation for loss of amenity should be ordered, however.
The tenant got no reasonable sleep for the last five weeks of the tenancy. That was a serious impingement of his amenity in the premises. I set the loss of amenity at 25 per cent of the weekly rent.
The Tribunal orders the landlord to pay the tenant $694.29 in compensation. Was the landlord’s notice retaliatory? Legal principles
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord: s 54(1) of the RTA.
To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
The tenant in this case submits a relevant factor was the tenant exercising his right to request a maintenance defect be remedied. 5 RTA, s 109.
A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 6
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00: s 54(2), (3) and Schedule 1A of the RTA. Discussion
The landlord’s 90-day notice to turn the premises into commercial premises was given about a week after the tenant complained about the freezer noise and leaking windows, so there is contemporaneity between the tenant exercising his tenant rights and the notice being given, from which a retaliatory motive might be inferred.
However, Mr Voordouw’s explanation of the landlord’s motivations for giving notice satisfy me that the landlord gave notice for only genuine and fair reasons. The premises are industrially zoned and externally appear to be wholly commercial premises.
Some months earlier, the landlord had been advised that he would get a better financial outcome by converting the residential premises to commercial premises. It is natural that the premises might be converted to commercial premises, and I am satisfied that the landlord intended to do so. I accept when he gave the tenant notice he was acting on the earlier advice.
There is no evidence of any animus towards the tenant. I am of the view, that the landlord was not reacting against the tenant for his complaint, but merely making a legitimate pragmatic decision to deal with the premises in the way he thought most appropriate.
This claim is dismissed. Filing fee 6 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”
Because has substantially succeeded with the claim, the Tribunal orders the landlord to reimburse the filing fee. Non-publication
The tenant seeks non-publication.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant substantially succeeded in proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.
The tenant’s application is granted.

Claims and awards in Tenancy Tribunal application 4677771. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Loss of amenity	$694.29		Loss of amenity
Filing fee	$20.44		Filing fee

Order

The tenant’s name and identifying details must not be published.
Blair McDonald as trustee for the McDonald Family Trust must immediately pay [the tenant] $714.73 as calculated in the table below: DescriptionLandlord Loss of amenity$694.29 Filing fee$20.44 Total amount landlord must pay$714.73

Reasons

The tenant attended the hearing in person.
`Joseph Voordouw and Grace Shi attended for the landlord’s agent.
The tenant claims the landlord failed to maintain the premises in respect to a noisy freezer generator and issued him with a retaliatory notice when he complained about the noise.

Did the landlord fail to maintain the premises?

Legal principles

Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 1 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 2 “...the obligation of the landlord, under s 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 might be...” 1 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 2 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15].
Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 3 However, Landlords have an independent obligation to repair defects that are apparent from observation: 4 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The premises are adjacent to commercial premises also owned by the landlord.
The landlord’s commercial tenant installed an external freezer motor near to the tenant’s bedroom. The motor would intermittently noisily jerk into life for a short time every hour or so, disturbing the tenant’s sleep.
The tenant reported the problem on 1 August 2023, but the issue was not remedied prior to his vacating on 5 September 2023. The commercial tenant could not offer a practical solution, so the landlord allowed the situation to continue.
The tenant’s basic tenancy rights were breached in several ways by the continuing nuisance. The landlord was obliged to ensure that his commercial tenant did not impinge on this tenant’s reasonable peace, comfort, or privacy. Under s 38(2) of the RTA: 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.
Similarly, under s 45(1)(e) of the RTA, the landlord must: 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.
Further there is an implied term in any tenancy agreement that the landlord will ensure the premises continue to provide a reasonable standard of amenity. A reasonable standard of amenity must include as a minimum that the conditions will allow a reasonable person to sleep without excessive noise. Put another way: when the tenant agreed to rent the premises, an important part of the tenancy was the legitimate expectation he would be able to sleep without excessive machine noise coming from the commercial premises.
The landlord failed to ensure the premises were free from excessive noise. 3 RTA, s 40(1)(d). 4 See n 1.
That failure falls within the landlord’s duty to maintain the premises in a reasonable state of repair. It cannot be said the residential premises is in a reasonable state of repair when the noisy unit is attached to the building and the noise issue could be remediated by removing it.
It was a breach of the implied term of the agreement.
The landlord was in breach of s 38(2) because he permitted an interference with the tenant’s reasonable peace and comfort.
It is arguable that the landlord did not take all reasonable steps to prevent his other tenant’s interference given the seriousness of the interference.
I find the landlord liable for the noise nuisance. Remedy
Exemplary damages are not available for the unlawful act because the landlord’s act was not intentional. 5
Compensation for loss of amenity should be ordered, however.
The tenant got no reasonable sleep for the last five weeks of the tenancy. That was a serious impingement of his amenity in the premises. I set the loss of amenity at 25 per cent of the weekly rent.
The Tribunal orders the landlord to pay the tenant $694.29 in compensation. Was the landlord’s notice retaliatory? Legal principles
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord: s 54(1) of the RTA.
To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
The tenant in this case submits a relevant factor was the tenant exercising his right to request a maintenance defect be remedied. 5 RTA, s 109.
A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 6
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00: s 54(2), (3) and Schedule 1A of the RTA. Discussion
The landlord’s 90-day notice to turn the premises into commercial premises was given about a week after the tenant complained about the freezer noise and leaking windows, so there is contemporaneity between the tenant exercising his tenant rights and the notice being given, from which a retaliatory motive might be inferred.
However, Mr Voordouw’s explanation of the landlord’s motivations for giving notice satisfy me that the landlord gave notice for only genuine and fair reasons. The premises are industrially zoned and externally appear to be wholly commercial premises.
Some months earlier, the landlord had been advised that he would get a better financial outcome by converting the residential premises to commercial premises. It is natural that the premises might be converted to commercial premises, and I am satisfied that the landlord intended to do so. I accept when he gave the tenant notice he was acting on the earlier advice.
There is no evidence of any animus towards the tenant. I am of the view, that the landlord was not reacting against the tenant for his complaint, but merely making a legitimate pragmatic decision to deal with the premises in the way he thought most appropriate.
This claim is dismissed. Filing fee 6 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”
Because has substantially succeeded with the claim, the Tribunal orders the landlord to reimburse the filing fee. Non-publication
The tenant seeks non-publication.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant substantially succeeded in proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.
The tenant’s application is granted.

Tenancy Tribunal case 4677771 — Leaks at 280 Main Road, Kumeu 0810

At a glance

Tenancy Tribunal case 4677771 — Leaks at 280 Main Road, Kumeu 0810

At a glance

Claims & awards

Order

Reasons

Did the landlord fail to maintain the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord fail to maintain the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions