What was Tenancy Tribunal case 4710995 about?

The tribunal order states: The rent for the tenancy premises is $640 a week.

How much money was awarded in case 4710995?

Landlord Waived The Right To Notice…: $20.44 awarded to landlord

What type of tenancy dispute was case 4710995?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4710995?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9944427-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4710995 about?

The tribunal order states: The rent for the tenancy premises is $640 a week.

How much money was awarded in case 4710995?

Landlord Waived The Right To Notice…: $20.44 awarded to landlord

What type of tenancy dispute was case 4710995?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4710995?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9944427-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4710995 — Leaks

Claims and awards in Tenancy Tribunal application 4710995. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
landlord waived the right to notice of the claim of unlawful entry. 5. All other claims are dismissed. 6. The landlord m	$20.44		landlord waived the right to notice of the claim of unlawful entry. 5. All other claims are dismissed. 6. The landlord m

Claims and awards in Tenancy Tribunal application 4710995. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
landlord waived the right to notice of the claim of unlawful entry. 5. All other claims are dismissed. 6. The landlord m	$20.44		landlord waived the right to notice of the claim of unlawful entry. 5. All other claims are dismissed. 6. The landlord m

Order

The rent for the tenancy premises is $640 a week.
The rent cannot be increased for 6 months from the date of this order.
Any rent paid at a higher amount for any rent period from 17 October 2023 must be refunded to the tenant immediately.
The landlord waived the right to notice of the claim of unlawful entry.
All other claims are dismissed.
The landlord must pay $20.44 to the tenant immediately being reimbursement of the filing fee.

Reasons

Both parties attended the hearing. The landlord had a representative speak for her at the hearing.
The tenant has lived at the tenancy premises with her partner and daughter since March 2021. The current weekly rent is $470, which the tenant believes is too high. She wants the Tribunal to determine the market rent for the house. The tenant has also applied for exemplary damages because she is concerned that the underfloor insulation did not comply with the Healthy Homes Standards after the hot water cylinder flooded. She made a further claim for exemplary damages, which was filed late, because she was concerned the landlord entered the house unlawfully to carry out a market rent appraisal. This claim had not been properly served on the landlord, but the landlord waived her right to notice so that all the claims could be heard together. The questions for the Tribunal are: • What is the market rent for the house? • Was there a breach of the duty to provide underfloor insulation? • Was there an unlawful entry?

What is the market rent for the house?

The tenant has applied for a market rent assessment. Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.
The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
In this case, both parties provided the Tribunal with helpful information about market rent. The tenant provided a large table with comparable tenancies in the area and included photos. She had also visited a number of the houses.
The landlord provided me with her comments on the table, copies of the real estate agent’s photos when she bought the house, and four market rent appraisals by different property management companies giving a range of market rents from $650 - $740 a week. The landlord said she put the rent up to cover the increased costs of owning the tenancy premises and on the advice from the property managers.
I note that the landlord’s increased rates and insurance are not the determinative factors here. This is because section 25(3) RTA states I must make my decision without regard to the landlord’s personal circumstances.
It is clear to me that both parties took considerable time preparing for the Tribunal hearing and I thank them for that. While the information from trade me has its limitations because it is the rent landlords want to receive, it was very helpful as examples of what can be considered upper or lower quartile houses in the area.
The house is located in [Suburb 1], not [Suburb 2]. There is a difference in the Tenancy Services figures for these two areas, so I have not had regard to the beach properties. Likewise, I have not had regard to the information provided for other neighbouring areas.
The photos provided by the landlord show a nice open plan living space and three good bedrooms. This house had new paint and carpet before the tenants moved in. There is a deck and nice views. While there is no garage, it does have a carport and an enclosed storage room.
The tenant provided me with photos showing the deficiencies in the house. I can see the kitchen is very old and the floor is cracked in places. The bench, the benchtop tiles and the kitchen cabinetry are all damaged. The bathroom is old and only has a shower over the bath and the fittings are dated. There are holes in some of the doors and the bathroom door frame is damaged. The storage shed has recently sprung a leak.
As said, the Tenancy Services 'market rent' statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The median rent for three bedroom homes in [Suburb 1] for the period from June to November 2023 is $650. The lower quartile rent is $590, and the upper Quartile rent is $700. Having considered the tables and the evidence provided for the hearing it seems most likely to me that the tenancy premises are on the lower quartile side of the statistical ledger. I note there are properties which look to be in a poorer condition, and there are also properties which are newer and bigger.
I accept the rental appraisal done by [The property management company] is not reliable because of the errors noted by the tenant – for example referring to the front section and a gas heater.
The desk top appraisals done by [Real estate company 1] recommending a weekly rent in the range of $660 - $680, and by [Real estate company 2] recommending $650 - $700, should also be treated with caution because property management companies have a vested interest in a high appraisal, and the appraisers did not come to the house.
The actual appraisal done by [Property management company 2] in January 2024 is the most reliable. This placed the rental at $670 - $680 a week, which is at the top of the Tenancy Services market rent figures. However, I am still cautious because this is proposed rent rather than realised rent.
I find the best evidence I have for the market rent is the Tenancy Services statistics. This is because there are a large number of active bonds for three bedroom homes in [Suburb 1]. This provides a good reflection of the current rental market. It is a record of the actual rents received by landlords. It also takes into account the increased rents in [District] because it is a record of the rents received for the past 6 months.
Taking the tenancy services statistics and the lower quartile finding into account, I find the market rent for the tenancy premises is $640 a week.
Section 25(4) RTA provides that a market rent order may not take effect any earlier than the date of the application. The order may last for up to 6 months in the case of a periodic tenancy.

Was there a breach of the duty to provide underfloor insulation?

The tenant has claimed exemplary damages because she believes the landlord breached the obligation to keep the underfloor insulation in a reasonable condition. This claim arose because some of the underfloor insulation fell down. Exactly when the insulation fell down is not known. The tenant discovered the issue and told the landlord. The landlord spoke with her insurance company before reattaching the insulation to the underfloor. The tenant expressed concern because she does not know if the insulation was dry and undamaged when it was re-installed.
Breaching the obligation to insulate and to keep insulation in a reasonable condition is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 See the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) and s 45(1A) and Schedule 1A RTA.
I am not persuaded there was a breach by the landlord here. I find she acted when she was told about the insulation. The landlord is not required to know about all the defects at a property, but she is required to act once alerted to a problem by the tenants. Contacting her insurer was a reasonable response because of the history of repairs. Her evidence is that the insulation was dry when she attached it again. The HHS report carried out just before the hearing stated the insulation complies with the required standards. This claim is not proved and it is dismissed.

Was there an unlawful entry?

The tenant claims that 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) RTA.
The facts are that the landlord gave notice she would be entering the house with another person to check the repairs to the hot water cylinder. This was in January 2024. The tenant was at work when the inspection took place, and the tenant’s partner was at home. When the landlord arrived for the inspection she told the partner she had a property manager with her and they wanted to complete another rent appraisal. The partner said the landlord would need to ask the tenant for her consent. The tenant said she has never been asked, hence the claim.
I am not persuaded there was a breach by the landlord here. Section 48 allows entry with the consent of the tenant. The tenant allowed her partner to act on her behalf, as she had done in the past. There is no evidence the partner said the landlord and the property manager were not allowed in. I find it was reasonable for the landlord to presume that the partner gave consent to the entry. This claim is dismissed. Other orders
Because the tenant has substantially succeeded with the claim, I have reimbursed the filing fee.
Both parties made an application for suppression. 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. See section 95A RTA.
The tenant’s application for suppression is allowed because the tenant is the most successful party. The landlord’s application for suppression is not allowed because there is public interest in the name being made public when orders are made against the landlord.

Tenancy Tribunal case 4710995 — Leaks

At a glance

Tenancy Tribunal case 4710995 — Leaks

At a glance

Claims & awards

Dismissed claims

Order

Reasons

What is the market rent for the house?

Was there a breach of the duty to provide underfloor insulation?

Was there an unlawful entry?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

What is the market rent for the house?

Was there a breach of the duty to provide underfloor insulation?

Was there an unlawful entry?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions