What was the outcome of Tenancy Tribunal case 4716849?

The tribunal order states: By consent, the landlord may enter and remain at the premises between

How much money was awarded in case 4716849?

Of Declaration That The Notice Of Re…: $640.00 awarded to landlord

What type of tenancy dispute was case 4716849?

The primary dispute was Rent arrears. Related themes: 14-day notice, Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4716849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10155611-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4716849?

The tribunal order states: By consent, the landlord may enter and remain at the premises between

How much money was awarded in case 4716849?

Of Declaration That The Notice Of Re…: $640.00 awarded to landlord

What type of tenancy dispute was case 4716849?

The primary dispute was Rent arrears. Related themes: 14-day notice, Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4716849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10155611-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 178 Archers Road, Glenfield, Auckland 0629 Tenancy Tribunal Case 4716849 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Order

Claims and awards in Tenancy Tribunal application 4716849. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
of declaration that the notice of rent increase issued to the tenant is valid so the rent payable for the tenancy is	$640.00		of declaration that the notice of rent increase issued to the tenant is valid so the rent payable for the tenancy is

By consent, the landlord may enter and remain at the premises between 12:00midday and 5:00pm on Wednesday 10 April 2024.

During that time the landlord will: a. repair the damage/ deterioration to the bathroom ceiling; b. repair/ replace any damaged venetian blinds; c. conduct a routine inspection; d. have tradespeople install an underfloor ground moisture barrier.

Before then, the tenant will ensure that any material under the floor of the premises that would impede installation of the moisture barrier is removed.

It is intended, but not required, that the tenant’s partner Ms Ulberg be present while the landlord and/ or tradespeople are there.

The Tribunal Orders by way of declaration that the notice of rent increase issued to the tenant is valid so the rent payable for the tenancy is $640.00, effective from 17 September 2023.

Mike Moore must pay to NZ Pro Property Management t/a LJ Hooker Mt Albert Ltd $840.00 immediately, being rent arrears to 30 March 2024.

The tenant’s applications for exemplary damages for unlawful entry, failing to meet maintenance obligations and retaliatory notice are dismissed.

The landlord’s application for termination of the tenancy for anti-social behaviour is dismissed.

The landlord’s application for compensation for door repairs is dismissed.

The tenancy is terminated and possession is returned to NZ Pro Property Management t/a LJ Hooker Mt Albert Ltd at 11:59pm on Sunday 30 June 2024.

The above Orders are without prejudice to the right of either party to bring further applications in respect of issues other than those determined by this Order or in respect of issues arising after the date of this Order.

Any notices or documents to be served on the tenant may be served by e-mail to y.alrubayee@holmdenhorrocks.co.nz and by post to the tenancy address. The tenant’s current phone number is confirmed to be 0272082600.

Reasons

Both parties attended the hearing. The tenant was represented by counsel. Background

The parties entered into a fixed term agreement for a term from 17 October 2021 to 22 October 2022.

On 7 March 2022 the landlord applied for an order terminating the tenancy on the grounds that the tenant had engaged in three episodes of anti-social behaviour within a 90 day period (s.55A).

That application was heard and dismissed in an Order dated 19 April 2022 (application 4332162).

In that Order the Tribunal found, “...had this been a periodic tenancy the landlord would have established the grounds for the tenancy being terminated under s.55. However, that provision specifically only allows such an application to be made in respect of periodic tendencies. This tenancy is for a fixed term from 17 October 2021 to 20 October 2022. An order for termination cannot therefore be made under that provision. I have considered whether to approach the matter as if an application had been made under s.56(1) for termination due to a breach incapable of remedy. In my view it would not be appropriate to change the nature of the landlord’s application in that way. The landlord’s application must therefore be dismissed. The tenant must be aware though that I consider his past conduct to amount to clear beaches of his obligation under s.40(2)(c), not to “...cause or permit any interference with the reasonable peace, comfort, or privacy of......... any other person residing in the neighbourhood. If there is a repeat of any such conduct in the future, the Tribunal will no doubt be presented with a further application under s.56, which can provide a basis for termination of a fixed term tenancy.”

The tenancy became a periodic tendency from 23 October 2022 by operation of section 60A.

On 12 October 2023 the tenant brought this application. In his application the tenant seeks exemplary damages for: a. unlawful entry and affecting the tenant’s quiet enjoyment of the premises; b. the landlord failing to meet obligations in respect of maintenance; c. the landlord issuing a retaliatory notice of termination.

The tenant also seeks Orders that: a. the landlord gives proper notice for inspection and maintenance works; b. the landlord attends to the maintenance required in respect of the venetian blinds and bathroom ceiling; c. his legal costs be reimbursed.

On 19 October 2020 the landlord filed an application seeking: a. compensation for damage to a door; b. termination on the grounds of anti-social behaviour by the tenant; c. termination on the grounds that the tenant has refused the landlord entry to the property to conduct inspections and carry out necessary maintenance work.

Each of the parties’ applications is addressed separately below Rent

The landlord issued the tenant with a notice of rent increase increasing the rent from $610.00 per week to $640.00 per week effective 17 September 2023.

The only issue is whether that notice was properly served on the tenant.

The notice was sent to the tenant by e-mail to the e-mail address for service provided by the tenant in the tenancy agreement. The landlord’s evidence, which I accept and which has to some degree been corroborated by photographic evidence, is that any notices, after being emailed to the tenant, were also sent to the tenancy address by post.

The tenant denies receiving the notice of rent increase by either service method.

The tenant stopped using the e-mail address which was given by him as a service address in the agreement. I accept that he may not have received the e-mailed notice. The tenant says that he has received other post to his letter box and so the reason for his not receiving the mailed copy of the rent increase notice, or indeed any other communications from the landlord, is difficult to explain.

Nevertheless, in terms of section 13AB the e-mail address specified by the tenant in the agreement is an effective address for service of notices and other documents relating to the tenancy. Had the tenant wanted another address for service to be used there was an obligation on him to inform the landlord.

The tenant says that the landlord ought to have known he was no longer using that e-mail address for service, but it is clear from the evidence that he did not tell the landlord that until he did so through his lawyer in mid-November 2023.

The landlord has met the service requirements by e-mailing the notice to the tenant’s address for service address as well as by posting the notice to the tenancy address.

I find that the notice of rent increase was validly served and compliant with the requirements of s. 24. The rent payable for the tendency is accordingly $640.00 effective 17 September 2023. Rent arrears have accumulated at the rate of $30.00 per week from then until now, as proved by the landlord’s rent summary.

There is no evidence to prove that the tenant is responsible for damage to the door for which repair costs are claimed. That application is dismissed.

Should exemplary damages be awarded against the landlord?

The tenant’s claim for exemplary damages on the grounds that the landlord has issued a retaliatory notice of termination must be declined. No termination notice has been given by the landlord.

The tenant claims exemplary damages for the landlord failing to meet obligations in respect of maintenance.

The evidence shows multiple attempts by the landlord to give effective notice of an intention to access the property to do some maintenance that was clearly necessary, for instance the installation of a ground moisture barrier. Unsuccessful attempts were made to access the property in terms of those notices.

Even if, as the tenant claims, he did not receive the notices, service was affected as required by the RTA and no blame should attach to the landlord for the tenant’s failure to receive them. In those circumstances an award of exemplary damages would be unjust.

Similarly, my finding is that the landlord’s visits to the property, intending to enter, were in accordance with properly issued notices of intention to carry out inspections. The property managers were unable to enter because the premises had been secured by the tenant, but had they been able to so, their entry would not have been unlawful, as being undertaken in exercise of properly notified rights of entry in terms of s.48.

The landlord is required to take reasonable steps to moderate intrusive behaviour of neighbours who are also tenants of the landlord (s.45(1)(e)). The neighbours whose behaviour the tenant complains of, are not tenants of the landlord. Tenant’s other claims

The maintenance requests by the tenant in respect of the venetian blinds and bathroom ceiling are dealt with by the consent orders above. There is no evidence of the tenant having made previous requests to the landlord for that work to be done which the landlord has not complied with.

Confirmation of service requirements is given in the above orders.

The tenancy became a periodic tenancy from 23 October 2022. The Tribunal’s Order dated 19 April 2022 notes that from that point, the landlord was able to issue notices under section 55A if it believed the tenant was engaging in anti- social behaviour. As also indicated in that Order, it was open to the landlord to give notice under section 56 requiring the tenant to remedy any claimed breaches of the obligation under s.40(2)(c) not to interfere with neighbours’ reasonable peace, comfort or privacy.

No such notices were issued.

The landlord presented a significant quantity of evidence from neighbours, who also attended the hearing intending to give oral evidence. I indicated to the landlord that I saw no basis on which the Tribunal could make a termination order under s.55A or 56 when none of the notices required by those provisions had been given to the tenant.

Those witnesses were not called to give evidence about anti-social behaviour and the witness’ statements have been disregarded in making this Order as they are not relevant. Should the tenancy be terminated for breach of the tenant’s obligation under section 48(4)?

A landlord may enter the premises during the tenancy 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.

Failure by the tenant to allow the landlord entry to the premises in circumstances where the landlord has a right of entry is a breach of the tenants obligations and is an unlawful act.

The evidence satisfies me that on multiple occasions since January 2022 the landlord has attempted to exercise its right to enter the premises to undertake inspections or carry out necessary repairs and maintenance.

I am satisfied that on each of those occasions the landlord gave due notice to the tenant through the e-mail address for service specified by the tenant in the agreement and by post to the tenancy address.

Personal service on the tenant was attempted. There is a conflict in the evidence as to whether that was by one of the property managers or by an uber driver acting on the property manager’s behalf but in any event the person delivering the notice delivered it to the premises, to the tenant’s partner. The envelope was returned to the landlord’s offices unopened. The tenant was aware it was a communication from the landlord.

The tenant says that no notices were actually received by him so he can’t be said to have obstructed the landlord’s exercise of its right of entry into the premises. The evidence however shows at least one occasion where there was no doubt about the tenant having been aware of notice of an intended inspection had been given. The tenant confirmed the date for the inspection to be carried out. On the date of the inspection, the property manager, in accordance with its usual practice, sent a courtesy txt to the tenant to remind him. The time was confirmed by the tenant, but still the property manager was unable to access the premises.

In his oral evidence the tenant confirmed that he became frustrated with what he saw as the landlord’s failure to address maintenance issues raised by him at inspections earlier in the tenancy, so he decided not to be cooperative with the inspection process.

A neighbour gave evidence of having found the tenant’s mailbox delivery slot covered with transparent type. The tenant denies having put it there and I do not find it proved that was a deliberate attempt to avoid delivery of unwanted communications from the landlord.

The evidence persuades me that while (through no fault of the landlord) the tenant may have been unaware of some of the notices of intended entry to inspect the premises or install the moisture barrier, that was largely due to the tenant’s choice not to be informed. On at least some occasions the tenant has intentionally obstructed the carrying out of inspections or maintenance work of which he had actual notice and which the landlord was entitled to enter to the premises to carry out.

I find that the tenant has breached his obligations under s.48(4).

As the landlord seeks termination of the tenancy for breach of the tenant’s obligations, where the breach is capable of remedy the landlord must first have served a notice on the tenant requiring him to remedy the breach within at least 14 days and establish that the tenant has failed to do so.

The evidence shows that the landlord has served multiple notices on the tenant in respect of those breaches. The breaches have clearly not been remedied and even as recently as November 2023, a notice of intended entry, properly given and served through his lawyer as requested by the tenant, was not complied with by the tenant, citing the upcoming hearing.

I am reluctant to terminate this tenancy. Clearly it meets the needs of the tenant and his partner, and the tenant appears to be meeting his core obligations to pay the rent when due and keep the premises in a reasonably clean and tidy condition.

I must however find that in terms of s.56(1)(c), the tenant’s breach is of such a nature and extent that it would be inequitable to the landlord not to make an order for the tenancy to be terminated.

The landlord has made every effort to accommodate the tenant’s terms but has been prevented from meeting its fundamental requirements to carry out regular inspections and to do the work necessary to meet its statutory obligation to ensure the premises are Healthy Homes compliant.

Counsel for the tenant suggests that the problems arise from misunderstandings and communication difficulties that can be remedied. However, the evidence persuades me that the barriers to communication are primarily those intentionally put up by the tenant, to the extent that his actions have made the tenancy effectively unmanageable.

The termination order is made due to the tenant’s ongoing obstruction of the landlord’s right to enter the premises to undertake inspections and carry out necessary maintenance work.

Those immediate necessities are covered by the consent orders made above.

There is no evidence to suggest a need for the landlord to undertake further inspections before the next quarterly inspection cycle that it generally follows. There is no evidence of a need for urgent maintenance over and above that addressed in the above orders (albeit that the landlord has not been able to inspect the premises for an unacceptably long time).

That being so there seems little prejudice to the landlord in deferring the effective termination date for 90 days to give the tenant better opportunity to find alternative accommodation.

I make it clear that deferring the termination date as I have, does not prevent a further application being made if before then if there are further breaches of the tenant’s obligations that warrant such an application being made. Costs

The landlord was not legally represented. The tenant was legally represented but the material findings have been in favour of the landlord’s position.

That being so no order for costs is made.

No order is made in respect of the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4716849. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
of declaration that the notice of rent increase issued to the tenant is valid so the rent payable for the tenancy is	$640.00		of declaration that the notice of rent increase issued to the tenant is valid so the rent payable for the tenancy is