What was Tenancy Tribunal case 4736409 about?

This case concerned a 14-day notice dispute.

How much money was awarded in case 4736409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4736409?

The primary dispute was 14-day notice. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4736409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10039698-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4736409 about?

This case concerned a 14-day notice dispute.

How much money was awarded in case 4736409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4736409?

The primary dispute was 14-day notice. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4736409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10039698-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4736409 — 14-day notice

Tenantcheck Insights

Reasons

Both parties attended the hearing on 1 February 2024, the landlord by telephone (with permission).

The landlord has applied for an order for entry to the premises for the purpose of complying with the healthy homes standards.

On 20 September 2023 the landlord emailed the tenant, requesting access to install a 5kW heat pump in the living room. The landlord said the current heater in the living room would need to be removed but could be moved to another room if still in good condition. The tenant responded to this and other emails on 3 October 2023, denying access.

On 10 October 2023 the landlord gave notice of entry on 18 October 2023 at 1pm to “scope the healthy homes interventions” required at the premises. The landlord was not permitted to enter.

On 19 October 2023 the landlord gave the tenant 14 days’ notice to allow access and requested that the tenant allow the landlord to visit on 6 November 2023 to assess the work required to comply with the healthy homes standards. Again, the landlord was not permitted to enter. Relevant law

The landlord is entitled to enter the premises on 24 hours’ notice for the purpose of complying, or preparing to comply, with the healthy homes standards, including any prospective requirements of those standards (section 49(2)(cb) of the Residential Tenancies Act 1986 (the Act).

The Residential Tenancies (Healthy Homes Standards) Regulations 2019 (the Regulations) provide that the main living room of the premises must be heated by one of more qualifying heaters. To be a “qualifying heater”, the heater must be installed as a fixture and have a heating capacity of at least 1.5kW. The heater must also have the “required heating capacity” for the size of the living room, taking into account heat loss based on an assumed external temperature.

There is one main exemption to the heating standard. The main living room need not have a qualified heater if the living room does not have one at the start of the tenancy and it is not reasonably practicable to install qualifying heaters. It is not reasonably practicable to install the heater if it cannot be installed without carrying out substantial building work or causing substantial damage to the premises. Analysis

The tenant is required both by the terms of the tenancy agreement and by the Act to grant access to the landlord for the purpose of compliance with the healthy homes standards. This includes preparatory work, so the landlord was entitled to give notice for access to “scope” what work was needed. My understanding is that the scoping work has in fact been done and access is now required to install the heat pump.

In written submissions received after the hearing, the tenant submitted that the existing 2.2kW electric heater in the living room was sufficient to comply with the heating standard. The tenant provided a print-out from the online heating assessment tool showing a “required heating capacity” of 1.7kW. The tenant submits that the existing heating is sufficient, and that the property already complies with the healthy homes heating standard. The unstated implication is that the landlord does not require access to comply with the healthy homes standards.

The landlord provided a 1-page scope of works dated 2 February 2024, providing the dimensions of the proposed 5kW Haier heat pump (W970mm x H320mm x D220mm) to be installed in the living room. The work will take 2-4 hours.

The landlord also provided a print-out based on the online heating capacity calculator, which determines the required heating capacity of the living room. This calculated a required heating capacity of 4kW, more than the current heater.

The tenant’s calculation is based on a floor area of 25.76m2. The landlord’s calculation gives a floor area of 44.3m2. This may account for the different results. The Tribunal has no way of knowing which calculation is more accurate, but the landlord’s assessment indicates that a heater with greater capacity than the current electric heater is required.

It is also unclear whether the current heater is in good condition. In written submissions, the tenant mentioned that it has not been serviced and has issues with the thermostat.

I consider the onus of proof is on the tenant to establish that the landlord is seeking access for a reason not permitted under section 48 of the Act, or that the reason given for entry is incorrect. On the available evidence I am not satisfied that the property already complies with the healthy homes standards. The landlord certainly does not believe so.

The landlord is also entitled to give notice to perform “necessary repairs to or necessary maintenance” of the premises. The meaning of “necessary” is not defined but the Tribunal has held that such repairs cannot be confined to matters of urgency, and section 48(2)(d) appears to contemplate ordinary repairs or maintenance, as long as they are necessary (Cowan v Makvin Investments Ltd (TT 12/07243/MK, 10 December 2012, Adjudicator Stephenson)). The landlord was invited to explain whether there was any other reason why they should be granted access to install a heat pump, besides the healthy homes standards (see the Tribunal order dated 13 February 2024). There may be, but the landlord presented no written submissions in response.

At the hearing and in written submissions, the tenant raised several further reasons why she objected to installation of the heat pump. Some of the reasons are more in the nature of complaints about aspects of the service provided by the landlord and are not suitable for determination in the Tribunal. More relevantly, the tenant explained: • She does not need a heat pump and the premises are warm enough without it. She would prefer the heat pump to be installed upstairs. • She has concerns about the environment and questions why a heater that she will not use should be installed. • The living room is very small, and the landlord is intending to install it where she would like to mount her TV. She is concerned whether the outdoor part of the unit will cause inconvenience. • There are ducted vents upstairs and the property would be better served with a DVS system rather than a heat pump.

There is a limit to what the Tribunal can do in the context of the present application. The Tribunal cannot decline a request for an order granting access based on the tenant’s ergonomic or environmental concerns. The tenant’s opinion about what would work best in the property may be legitimate but is subjective.

The Tribunal is not competent to determine whether a different make, model, colour, or style of heat pump should be installed. The Tribunal can check that the Regulations are met. If the proposed unit is a “qualifying heater” with the required heating capacity and is being installed in the main living room by a professional installer, then this is likely. The exemptions from the heating standard do not include the tenant’s personal views or preferences about aesthetics or where the heater should be installed.

For these reasons, the Tribunal orders that the tenant must give the landlord access to install the heat pump, at any time between 9am and 5pm, after giving the tenant notice of entry at least 24 hours before the intended entry. If access is not granted, the landlord may decide to apply for an order terminating the tenancy. Name Suppression

The tenant requested suppression. She has not been successful in resisting the landlord’s application, but I have a discretion to grant suppression pursuant to section 95A(4) of the Act. There was some mention of protection orders and the tenant lives with a mental health condition. I grant suppression.

Reasons

Both parties attended the hearing on 1 February 2024, the landlord by telephone (with permission).

The landlord has applied for an order for entry to the premises for the purpose of complying with the healthy homes standards.

On 10 October 2023 the landlord gave notice of entry on 18 October 2023 at 1pm to “scope the healthy homes interventions” required at the premises. The landlord was not permitted to enter.

It is also unclear whether the current heater is in good condition. In written submissions, the tenant mentioned that it has not been serviced and has issues with the thermostat.

Tenancy Tribunal case 4736409 — 14-day notice

At a glance

Tenancy Tribunal case 4736409 — 14-day notice

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions