Published tribunal order
Tenancy Tribunal case 4681743 — Rent arrears at 45A Celia Street, Redcliffs, Christchurch 8081
Decided 20 Nov 2023 · Published 20 Nov 2023 · Application 4681743
- Rent arrears
Order
- [The tenant/s] and [The tenant/s] must pay [The landlord/s] and [The landlord/s] $1,218.26 from the bond calculated as shown in the table below.
- The parties’ claims are otherwise dismissed.
- The Bond Centre is to pay the bond of $2,400.00 (5654089-003) immediately apportioned as follows: [The landlord/s] and [The landlord/s]: $1,218.26 [The tenant/s] and [The tenant/s]: $1,181.74
Reasons
- Mrs Putz attended the hearing for the tenants. The landlords attended by telephone. Mr Hawke attended in person representing the property manager.
- The tenant has applied for compensation for breach by the landlords of their obligations in relation to the condition of the premises. They ended the fixed term tenancy early and they deny liability for rent for the period after they vacated and before the new tenancy started. Therefore, implicit in their application is a claim that they were entitled to terminate the tenancy.
- The landlords deny any breach of their obligations and they claim the unpaid rent for the period until the new tenancy started and the cost associated with re- tenanting the premises.
- The tenants’ claims concern the (un)cleanliness of the premises when they were provided to them, draughts, dampness and mould.
- The tenancy began on 13 February 2023 and was for a fixed term to 13 February 2024. The tenants informed the property manager on 17 July that they intended vacating the premises. They left on 6 August. The landlords relet the premises on 19 August. Law
- Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.
- The most recent Healthy Homes requirements would normally apply to the tenancy after 120 days from the start of the tenancy. But the landlords’ Healthy Homes Compliance Statement confirmed that the premises complied with the Regulations and so the tenants were entitled to expect full compliance with them from the beginning.
- The Act provides for termination of a tenancy. The tenants did not follow any of those processes and so the tenancy was not and cannot be terminated under the Act.
- That just leaves termination under s36 of the Contracts and Commercial Law Act 2017. That provides that a party can terminate a contract where there has been a serious breach of the contract by the other party which indicates to the innocent party that the other party does not intend to perform their obligations under the contract. The other party’s conduct is known as repudiation of the contract. The innocent party can then accept the repudiation and cancel the contract.
- The burden of proof is on the person making the claim. To prove the claim the person making the claim must prove all the necessary elements of the claim on the balance of probabilities. That means presenting evidence to show that they are more likely than not to be true. Discussion and Decision Termination and Rent
- There was an impasse between the tenants and the landlords concerning the issues of dampness and mould. The landlords did not accept any responsibility. The alleged problem could, in theory, be serious enough to justify termination but not in this case. I discuss that in more detail below.
- The tenants had options available to them other than ending the tenancy. They could have served a breach notice on the landlords and applied to the Tribunal for a work order requiring the landlords to carry out work to remedy the problem or they could have sought termination of the tenancy for the landlord’s failure to comply with the notice. The issue was not so serious or urgent that the tenants did not have time to follow these processes.
- For these reasons the tenants were not entitled to terminate the tenancy. It follows that they are liable to pay the rent until the new tenancy started. They are also liable to pay the costs of re-tenanting the premises which I find to be reasonable in amount. The Condition of the Premises
- The tenants have complained about the condition of the silicone around the bath, damp and mould affecting the premises and draughts from gaps in the premises.
- The evidence shows that the silicone was not in an acceptable condition when the premises were provided to the tenants. It was discoloured, degraded and missing in places. This seems to have been accepted by the landlords but despite promises to replace it, nothing was done about it.
- The landlords also seem to have accepted that the premises were not provided in a reasonably clean state. They allowed the tenants a rent rebate of $150 in consideration of the additional cleaning that the tenants were required to do.
- I see that rebate as dealing with the general want of cleaning at the start of the tenancy but not compensation for the condition of the silicon.
- The way that the landlords dealt with the tenants’ complaints generally left a lot to be desired. That appears to have been due largely to the fact that the landlords are based in Auckland, and they did not devote sufficient time to managing the premises.
- The bath had a shower over and it would have been unpleasant for the tenants to see the condition of the silicone daily. It was a simple fix, and don’t understand why it was not dealt with promptly.
- For this breach of the landlords’ obligation to provide and maintain the premises in a reasonable state of repair reasonable compensation is $400 and I have made that award.
- The tenants’ other claims have not been proved to the required standard. The tenants have criticised the landlords for not investigating their complaints adequately or at all. There may be some validity to that, but it remains for the tenants to produce the evidence needed to prove their claims and they have failed to do that.
- There were no photographs showing unreasonable gaps in the premises that could cause the draughts that they have complained of. The only evidence is the tenants’ own evidence that they felt draughts. When the landlords deny that there were gaps that caused draughts, that is not enough. If there were gaps that allowed draughts, it should have been possible for the tenants to produce photographs showing them. Alternatively, they could have produced a report from a suitably qualified person explain what was causing the draughts.
- Allegations of damp and mould are common in this Tribunal. But evidence that they are the result of a breach by the landlord of their maintenance obligations is less common. In this case the evidence has not proved any defect in the premises for which the landlords are responsible.
- Mould can form on any surface given the right conditions of temperature and humidity. It is ubiquitous. It may be the result of some defect in the premises or may be the result of the way that the premises are used. Neither may be to blame.
- The tenants have proposed possible causes for the damp and mould but none of them were proved. The tenants have written – “The water down the wall and the dampness on the floor could be because of a drainage issue or insulation”. But there was no evidence to prove either that the drainage was faulty or that the insulation was not compliant.
- For these reasons the tenants’ other claims must be dismissed. Filings fees
- There has been no outright winner and I make no award of filing fees. Suppression
- No party has applied for name suppression and there would be no basis for granting it in any case.