Published tribunal order
Tenancy Tribunal case 4720509 — Tenancy dispute at ORDER
Decided 20 Dec 2023 · Published 20 Dec 2023 · Application 4720509
- Boarding House
- Cleanliness
Party names are redacted in the official published order.
Order
- The landlord must apply the house rules for entry into the lodge by visitors, by: a. ensuring that the main gates are locked at all times, b. requiring all residents to abide by rules 16, 17 and 18; and c. ensuring adherence to those rules by following up any reported breaches of those rules and taking available enforcement action.
- Maidstone Lodge Limited must pay Mema Maeli $465.44 as per the table below: LandlordTenant Compensation: breach of requirement to apply rules$295.00 Compensation: breach of right to quiet enjoyment$150.00 Filing fee reimbursement$20.44 Total award$465.44 Total payable by Landlord to Tenant$465.44
- Suppression of the tenant's identifying details is ordered.
Reasons
- The tenant attended the hearing. The landlord did not attend.
- The applicant names David Southcombe as a party. However, the tenancy agreement names the landlord as Maidstone Lodge Ltd. Mr Southcombe played no part in the management of the boarding house or in the issues that led to this application. It is not appropriate that he personally be a party to the application.
- This is a boarding house tenancy created by an agreement between the parties dated 22 February 2022.
- The boarding house is a large one with over 100 rooms. Claims
- In her claims the tenant raises issues about the management of the boarding house. She says that the house rules are not applied consistently, that as a result safety issues have arisen and she is particular concerned about what she says is an unprofessional approach and lack of respect when issues of concern are raised with management.
- The tenant's application notes that the tenant "...would like these 2x onsite management to be removed from their current role for positive change". It is not for the Tribunal to stipulate to the landlord who it hires as mangers or what training of them is undertaken. Security concerns.
- The tenant's evidence is that for pedestrian access there is a an entrance gate from the street which should be left closed. It is able to opened by residents with an electronic fob. There are then glass doors to enter the lodge itself which the tenant says are meant to be locked from 3pm onward and which again are able to be opened with the fob.
- The House Rules are contained in the General Conditions of Occupancy" which form part of the tenancy agreement.
- The relevant rules are: "16. I/we agree to be vigilant in not allowing non-residents access to the property through secure entrances
- I/we agree to ensure that all visitors (maximum three at any time) are registered either by phone or contact with managers before they continue past the entrance foyer.
- I/ we agree to met our visitors at the front door (on their arrival) and to escort them back to the front door on their departure."
- The tenant says that these rules are not consistently respected or enforced and that there is different application of the rules for different residents.
- The tenant's evidence is that an unknown woman approached her in the common/ kitchen area around 5pm on 6 October 2023 when the doors ought to have been locked, who said she was there to see one of the managers, She said she had arrived 2 hours early, that the main gate was open and that she had had been let in the front doors by one of the residents.
- The tenant contacted the manager who the visitor had come to see. The manager told the tenant that the visitor should be allowed to stay there unaccompanied until he got back some 2 hours later.
- The tenant expressed her concern about that to the manager saying "you have her cell to reach her for correspondence. Its a safety issue as ppl being let in and asking us for you, [the other manager] or reception." The manager relied, "No its not a safety issue, I'll decide what is a safety issue and what's not." Please mind your own business."
- The tenant has provide photographic evidence of the main road entrance gate being held open with a road cone.
- The tenant says that she found the presence of that stranger in her (shared) living space an intrusion and clearly not what the house rules require.
- As noted, this is a large boarding house. Residents are entitled to feel secure and confident that non-residents will only be on the premises in circumstances set out in the House Rules, to which they have all agreed.
- Prospective residents are told, on the lodge's website that: "Maidstone Lodge is carefully managed to ensure the comfort, convenience and safety of our guests. Our large communal areas provide all necessary amenities and make great spaces for cooking, eating, and relaxing. For your assurance we have two onsite managers, CCTV, a security system and secure fencing."
- I find that the above incident occurred as alleged by the tenant. There was a breach of the rules by the main gate being left open, another by a resident giving an unaccompanied visitor entry through the front door by a tenant, and another by the manager telling the tenant to allow the stranger to stay there for 2 hours until he got back - directly contrary to what the house rules say.
- I find it proved that was a breach of the landlord's obligation under s.66I(1)(h) to, ".....take all reasonable steps to ensure that the house rules are observed, and to enforce them in a fair and consistent manner."
- I am persuaded that the breach and the landlord's response to it had a negative impact on the tenants right to quiet enjoyment of her room and the lodge facilities. I award 1 week's rent as compensation.
- Under s.66P(3) the Tribunal has jurisdiction "..require the landlord to apply a house rule in a particular manner." If the landlord then does not apply the rules as required, the landlord commits an unlawful act
- The evidence satisfies me that the tenant (and other residents) are entitled to have the rules for entry into the lodge by visitors applied by: a. ensuring that the main gates are locked at all times b. requiring all residents to abide by rules 16, 17 and 18; and c. ensuring adherence to those rules by following up any reported breaches of those rules and taking available enforcement action. Other house rule breaches
- The tenant alleges that other house rules are not enforced or not enforced equally.
- Her evidence is that there is frequently smoking, overuse of alcohol, drug taking, loud noise and domestic violence at the lodge, in breach of house rules, which management responds to inadequately and inconsistently.
- The tenant has provided in evidence a photograph of a whiteboard at the main entrance on which it is written (some of it is not legible), "Also do not smoke cigs or weed in the rooms or on the property. Pretty obvious but for the idiots it wafts into other people';s rooms.....if you don't like the rules.....find another place to live."
- The tenant says that such a notice, addressed to all residents is not an adequate response to individual residents breaching specific rules. She says specific enforcement steps against those breaching the rules are required.
- The tenant has provided statements from some previous residents who did not have positive experience staying at the lodge - although there are positive reviews on the website as well.
- I heard evidence from one previous resident who alleged that the room was dirty and not as advertised on the website, that there were people around who ought not have been in the lodge and that that she did not feel safe or secure staying there.
- She says that she had no adequate response from management when she ` raised her concerns with them. Relevant parts of her statement read: "The environment in general was also sketchy not going to lie, it didn’t feel safe. The men were suspicious, and people would smoke in their rooms as well as smoke weed in and outside as this would constantly come into my room, especially when I was sleeping. I am saying this in confidence because I would always voice my issues and concerns with the management. Yet never would get back to me, I would follow it up, and their lack of response wouldn’t match their actions of such concerns. About the bond when I left, I received this two weeks after I had left."
- The evidence presented does not prove a breach by the landlord of its obligation under s.66H and I, to ensure that the tenant's room and the facilities are provided and kept in a reasonable state of cleanliness and repair.
- I do consider that the landlord's response to issues raised by the tenant regarding breaches of the house rules has been lacking. A generalised response by way of a message on the whiteboard for all residents, does little to address specific alleged breaches by specific residents.
- That said, unlike the position with the application of rules for entry by visitors, the evidence about adherence to other house rules does not enable me to sensibly make Orders about how they should be applied. Responding to such a wide range of potential breaches is another issue and must necessarily be incident specific. Breach of right to quiet enjoyment
- Finally, the tenant alleges a breach of her right to quiet enjoyment as a result of the way a fire inspection was carried out.
- The inspection was originally scheduled for 21 November 2023. Residents were told that the work would take about 3-4 hours and that all residents rooms would be inspected.
- That inspection was delayed until 27 November 2023, due to a family issue for one of the managers. The residents were advised.
- Without prior notice to the residents the inspection notified for 27 November 2023 didn't go ahead. No reason was given. On 5 December 2023 the residents were told that the inspection would be happening at 8:30m the next morning. They were advised "please ensure your room is still clean and tidy and accessible to the fire service, They will be commencing at 8:30 and it will take most of the morning."
- A boarding house landlord is entitled to enter a tenant's room on giving 24 hours' notice for such purposes (s.66R(2) and 66S).. After giving notice of 2 prior intended inspections (each expected to take several hours) the tenant was given less than 24 hour's notice before the inspection did take place. Although perhaps unintended by the landlord, that was not sufficient notice and the tenant (and other residents) were required to be ready for the inspection over an extended period before getting short notice of the inspection that did take place. I consider that was an intrusion into the tenants' right to quiet enjoyment of the premises a modest award of compensation is appropriate to recognise that.
- As the tenant has had success with claims made I order refund of the filing fee.