What was Tenancy Tribunal case 4706203 about?

The tribunal order states: David Spencer Russ And Eschati Trust must pay [The tenant/s] $500.00

How much money was awarded in case 4706203?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4706203?

The primary dispute was 14-day notice. Related themes: State of repair, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4706203?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9724619-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4706203 about?

The tribunal order states: David Spencer Russ And Eschati Trust must pay [The tenant/s] $500.00

How much money was awarded in case 4706203?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4706203?

The primary dispute was 14-day notice. Related themes: State of repair, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4706203?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9724619-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4706203 — 14-day notice

Tenantcheck Insights

Reasons

Both parties attended the hearing.

The tenant applied for compensation and exemplary damages for: a. The landlord’s failure to maintain the property by failing to provide a working stove for ten weeks of the tenancy. See section 45(1)(b) and (c) Residential Tenancies Act 1986 (“RTA”). b. The landlord’s breach of the tenant’s right to quiet enjoyment. See section 38 RTA. c. The landlord unlawfully entering the premises. See section 48 RTA. d. The landlord’s failure to appoint an agent while overseas. See section 16A RTA.

The tenant also applied for a reduction of the fixed term tenancy and repayment of the bond. See section 66 RTA.

The landlord applied for compensation for his time on the basis that the tenant’s claims were “frivolous and abuse of process”. Standard of proof

In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, a party must establish with evidence that their claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.

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 testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.

Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered and that the evidence submitted both before and at the hearing has been reviewed.

By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely. Tenant’s claim: failure to maintain

The tenant claims that the landlord has breached his obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

The tenant claimed that the landlord did not provide them with a fully functioning stove for ten weeks of the tenancy and provided evidence of communications with the landlord, including a 14 day notice issued to the landlord.

The landlord accepted the evidence of the tenant that he had been notified of the issues and that it took this period of time for a functioning stove to be installed. He was aware that the tenant was using their own benchtop oven and believed that the tenant was not worried about the delay. The landlord explained the difficulties he had in having tradespeople attend to this job.

It is the landlord’s responsibility to attend to repairs in a reasonable time frame. Ten weeks is not a reasonable time frame for the repair of an essential item such as a stove.

The tenant is not under any obligation to provide their own means of cooking. Under Regulation 2(b) of the Housing Improvement Regulations 1947, it is the landlord’s responsibility to supply “adequate means of preparing food and of cooking food, both by boiling and by baking”. The landlord has failed to do so and is in breach of sections 45(1)(b) and (c) RTA.

The landlord has committed an unlawful act. See section 45(1A) RTA.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

The landlord knew of the repair required but reasonably believed the tenant was managing with their own cooking facilities. I am not satisfied that the landlord intended to commit the unlawful acts of failing to repair and supplying cooking facilities. He always intended to carry out the repairs but was simply slow in doing so. In any event, I am not satisfied that it would be just to award exemplary damages in the particular circumstances of this case.

It is more appropriate to award the tenant compensation for the lack of amenity which the landlord was legally obliged to supply. The tenant explained at the hearing that they were claiming 10% of the rent of $500.00 per week that they were without an operating stove provided by the landlord. This equates to $500.00. I agree that this is an appropriate sum and it is awarded to the tenant. Tenant’s claim: breach of quiet enjoyment

The tenant claims the landlord has breached their right to quiet enjoyment.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

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 RTA.

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

The tenant claimed that the landlord upset her and made her feel threatened when he remonstrated with her over being issued with a 14 day notice to repair the stove.

The landlord advised that he also was upset to have received the notice having been a “good landlord” for many years and over many properties, with only one other tenant issuing him with such a notice.

I am not satisfied that a disagreement or heated discussion over a valid notice constitutes a breach of the tenant’s quiet enjoyment.

The tenant also claimed that the landlord’s behaviour on 26 September 2023 when he arrived earlier than he had advised tradespeople would be on site, his appearance inside the property on 4 October 2023 (discussed in more detail below) and his sending emails and texts to the tenant outside usual business hours were further instances of breaches.

The landlord advised that he was simply keeping in touch with the tenant about matters she had raised in relation to the tenancy and that when tradespeople were at the property, he saw himself as “part of the team” and that his presence was required.

The landlord is entitled to be on site, without entering the house property, for the valid reason of supervising or directing tradespeople. The landlord is also allowed to text or email the tenant with requests for access or updates on progress. The tenant did not object to the landlord entering the house on 26 September 2023 with the tradespeople and did not subsequently raise it with the landlord until filing their application on 7 October 2023. In the particular circumstances of this case, neither of these matters can be considered as breaches of the tenant’s quiet enjoyment.

Nor can I find that the landlord’s behaviour amounted to harassment. There is no evidence that he engaged in a pattern of behaviour designed to breach the tenant’s quiet enjoyment. The tenant’s claim for exemplary damages is dismissed.

I am not satisfied on the balance of probabilities that the landlord has breached the tenant’s quiet enjoyment so that compensation should be payable. The tenant’s claim is dismissed. Tenant’s claim: unlawful entry

The tenant claims the landlord has entered the premises without consent or notice.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

The tenant claimed that the landlord entered the house property without her consent on 4 October 2023. The landlord had texted the tenant at 13.03 on that date: “Will it be ok this arvo for the oven? and George for the shower tomorrow arvo?”

The tenant responded: “Yes that is fine what time” The landlord replied “Within an hour” and the tenant replied “Ok il clear the back door”.

The tenant was then startled when the landlord appeared in the kitchen with the new stove less than an hour later.

The landlord advised that he thought the tenant was out and that he called out before entering. He also believed that he had the tenant’s consent from the text saying it was fine for him to deliver the oven that afternoon.

I agree that the tenant’s text gave the landlord consent to entering the property with the new stove. The landlord has not therefore entered the property in breach of section 48 RTA. The tenant’s claim is dismissed. Tenant’s claim: failure to appoint an agent

The tenant claims the landlord has been overseas for longer than the Act permits without appointing an agent.

A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.

The tenant has explained why they believed the landlord has been out of New Zealand for more than 21 days.

The landlord provided evidence of his absence from New Zealand from 20 August to 1 September 2023. This is a period of less than 21 days.

The tenant’s claim must therefore be dismissed. Tenant’s claim: reduction of fixed term and bond refund

The tenant has applied for reduction of the fixed-term tenancy due to end on 28 January 2024.

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.

The tenant claimed that she and her family no longer feel safe in the property because of the landlord’s disregard for her right to quiet enjoyment of the property. The tenant and her family have moved out of the premises but continue to pay rent.

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly and it is only in limited circumstances that a court or tribunal will interfere with it. There is a high threshold that needs to be met before the Tribunal will reduce the term.

Having considered the tenant’s claims for the landlord’s beaches of their quiet enjoyment and unlawfully entering the property and while I appreciate the tenant’s concerns, I am not persuaded that an objective observer would say that there has been an unforeseen change in the tenant’s circumstances that has caused them severe hardship.

It is not therefore appropriate to refund the bond to the tenant until the tenancy has ended.

There is less than two months left of the fixed term tenancy and the landlord has agreed to find a replacement tenant and end the tenancy from when the new tenancy starts. The landlord’s application

While the landlord is accustomed to resolving issues amicably with his tenants without seeking a determination by the Tribunal, a tenant is entitled to make claims to the Tribunal.

As indicated at the hearing, the tenant’s application clearly had merit and required the decision of the Tribunal. The tenant has been partially successful with their claims.

The landlord’s application is therefore dismissed. Ending the tenancy by mutual agreement

Because the tenant has vacated the premises and will not be returning, the parties agreed that the landlord would undertake a final inspection of the property as soon as practicable and would advise the tenant of any issues.

The tenant will hand back the keys to allow the landlord to arrange for inspections by prospective tenants. As the tenant does not live in the property, at the hearing they waived any requirement for the landlord to give them notice about accessing the premises and confirmed that he could come and go to the property as he wished without reference to them.

The landlord will use his best endeavours to arrange a new tenancy and this tenancy will end on the start date of such new tenancy or 28 January 2024, whichever is earlier. Suppression

Because the tenant has been partially successful in their application, it is appropriate that the tenant’s name and identifying details be suppressed.