What was Tenancy Tribunal case 4739070 about?

The tribunal order states: Nicholas Ross Jamieson must pay ML Management Limited $2,792.57

How much money was awarded in case 4739070?

Property Damage: $1,250.00 awarded to tenant; Property Damage: $264.00 awarded to landlord; Rent Arrears: $7,478.57 awarded to landlord; Rent Arrears: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4739070?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4739070?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10864145-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4739070 about?

The tribunal order states: Nicholas Ross Jamieson must pay ML Management Limited $2,792.57

How much money was awarded in case 4739070?

Property Damage: $1,250.00 awarded to tenant; Property Damage: $264.00 awarded to landlord; Rent Arrears: $7,478.57 awarded to landlord; Rent Arrears: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4739070?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4739070?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10864145-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4739070 — Rent arrears

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4739070 — net $2,792.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 22 December 2023	$7,478.57		Rent arrears to 22 December 2023
Repairs to walls and door	$264.00		Repairs to walls and door
Exemplary damages – harassment		$1,250.00	Exemplary damages – harassment
Unlawful premises – deduction from rent arrears		$1,500.00	Unlawful premises – deduction from rent arrears
Total award	$7,742.57	$2,750.00
Net award	$2,792.57
Total payable by Tenant to Landlord	$2,792.57

The tenant, Mr Jamieson, and Mr Huo (as representative) attended both hearings on 11 June and 17 September 2024.

The owner of the premises, Mrs He, was joined as a party to the proceeding on 11 June 2024. She attended the second hearing and was represented by Mr Huo. Representation

The Tribunal was unclear at the hearing on 11 June 2024 whether Mr Huo had authority to act for both the property manager and the owner. The Tribunal joined the owner as a party because the most serious allegations by the tenant directly implicated her conduct.

Following the hearing, the owner confirmed Mr Huo’s authority to act on her behalf. The owner of ML Management stated that she had resigned as property manager on 22 December 2023, but Mr Huo had authority to represent the owner.

I find that ML Management were not represented at the hearing. No written authority for Mr Huo to act on the company’s behalf has been provided. However, as an undisclosed principal, in my view the owner was entitled to continue the claim for rent and compensation.

The tenant was concerned that the property manager did not attend. While ML Management was both an applicant and a respondent, it did not have to attend the hearing. The property manager, [The property manager/s], was not called as a witness, and no request was made for a witness summons. The parties carry the burden of obtaining evidence which supports their case and must take steps to call witnesses. Background

On 8 August 2023 the landlord gave the tenant a 90-day notice to vacate by 10 October 2023. The notice stated that the landlord required the premises for occupation by employees and this fact was stated in the tenancy agreement (there does not appear to be such a statement in the agreement).

On 14 November 2023, the landlord applied to the Tribunal for termination, rent arrears, power charges and refund of the bond.

On 14 December 2023 the tenant filed an application against the landlord for refund of the bond, refund of rent, breach of the Healthy Homes Standards and exemplary damages.

The Tribunal terminated the tenancy on 21 December 2023. The remaining claims and the cross-application were adjourned.

The tenant vacated the premises on 22 December 2023. The tenancy agreement and the premises

The tenancy agreement stated that the landlord was ML Management. There was no mention of an agency relationship. ML Management was in fact acting as the agent for the owner.

The periodic tenancy began on 12 May 2023 for a weekly rent of $550.00. A bond of $2,200.00 was paid.

The tenant occupied a 3-bedroom detached house that was moved onto a rural section of about 6,000m² together with a 4-bedroom detached house. The two houses were situated about a metre apart and were connected by a short hallway. The larger house had a kitchen. The smaller house, occupied by the tenant, had what the property manager described as a “kitchenette”, but no oven or rangehood. The tenant said there was no sink, either. There were no separate power, gas, or water meters.

A Code Compliance Certificate dated 24 December 2020 described the building work undertaken as: “Relocate two dwelling[s] and connect them through a proposed hall (Proposed Lot 1 DP 537528)”. The Code Compliance Certificate stated that the building work complied with the building consent. As to the “Current, lawfully established, use”, the certificate stated: “Detached Dwellings”. Rent and power

The tenant vacated on 22 December 2023. The landlord claimed rent in the sum of $7,400.00 to 21 December 2023 plus an extra day ($78.57). The tenant did not dispute liability for the rent arrears. I discuss this issue further below in relation to whether the premises could lawfully be occupied for residential purposes.

The landlord also claimed $600.00 for estimated power use. There was no separate power meter for the premises and disputed evidence about whether both houses were occupied by tenants, and for how long. No power invoices were provided. It would be speculation to estimate the power the tenant may have used on the evidence available. I decline to award power costs. Cleaning and rubbish removal

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.

The landlord provided photographs showing building materials and rubbish scattered in the grounds surrounding the property. The property manager’s inspection conducted on 22 June 2023 identified a leak from the living room window, exterior cleaning, and rubbish removal as outstanding landlord obligations. The photographs show piles of wood, materials, and old appliances outside.

The tenant did not have an obligation to leave the premises in a tidier condition than he found them. I am not satisfied that the tenant failed to leave the premises in the same condition as they were in at the start of the tenancy. The premises were untidy at the beginning of the tenancy and at the end. I dismiss the application for rubbish removal and associated costs. Damage to the premises

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission (sections 40 and 41 of the Residential Tenancies Act 1986 (the Act)).

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or 4 weeks' rent. The insurance excess was $400.00.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to 4 weeks' rent.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.

Tenants are not permitted to make an alteration to premises except in accordance with the tenancy agreement or with the prior written consent of the landlord (section 42 of the Act).

The landlord claimed the cost of repairing holes in the walls, repairs to damaged wooden cabinetry and scratches on the wooden floors. There was also a claim for damage to the backdoor frame and panelling and to a washing machine.

The tenant accepted that one of the rectangular holes was where he had removed a cabinet, but he had not damaged the wall while doing so. The tenant also accepted that he had rearranged the cabinetry to create a makeshift food preparation area. The tenant said he changed the locks on the back entrance door to ensure he could safely exit the premises in an emergency. He said the flooring was scratched at the beginning of the tenancy.

I propose to award the following (subject to the discussion below about unlawful residential premises): (a) Repair of laundry and bedroom cabinetry and reinstallation of units in the laundry and bedroom ($440.00). The tenant made an alteration to the premises without permission, contrary to section 42 of the Act. (b) Repair to the backdoor frame ($88.00) and installation of a new deadbolt ($44.00). The landlord said there were several exits. The tenant made alterations to the premises without the landlord’s permission, contrary to section 42 of the Act. (c) Repairing the holes in the walls ($132.00). The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

I decline to award the following: (a) Removal of rubbish and broken furniture and appliances. The premises were untidy at the start of the tenancy. (b) Fixing a broken window in the living room. There is no evidence supporting this claim. The property manager referred to a broken window in the door following her inspection in June 2023, but she did not identify this as tenant damage. (c) Fixing the broken shutter window in the bathroom. It is not established that the tenant or his visitors caused this damage, which may have been caused by an agent of the owner on 22 December 2023. (d) Sanding and re-staining of the timber floorboards. The tenant had 2 large dogs living in the home. It is likely the tenant’s dogs scratched the flooring to some extent. The flooring looks to be in good condition as shown in the property manager’s photographs taken on 22 June 2023, however, the tenant’s ingoing photographs show a lot more of the flooring and there were several areas of damage. It is unclear to what extent the flooring already needed repair at the start of the tenancy. (e) The cost of a gasfitter repairing a damaged hot water system. The landlord provided an invoice to replace a gas valve hose and a poor-quality photograph. The tenant denied causing any damage and the photograph does not show obvious damage. (f) The cost of a replacement washing machine found damaged in a storage shed. It is unclear what caused the damage to this appliance. The tenant said he had never seen it. Breach of quiet enjoyment

There were several incidents at the property in late 2023 which were reported to the Police: • The tenant reported damage caused on 4 November 2023 to a vehicle owned by a third party. The tenant noted that neighbours had moved into the house next door 3 days earlier. • The tenant reported damage caused on 12 November 2023 to vehicles owned by the tenant and his partner. The tenant identified the owner and her son as the perpetrators. It was alleged that items were stolen from the vehicles. An Asian lady was parked in her car at the gate and the tenant assumed this was the owner. The tenant also said the owner had emptied the water tanks at the premises the day prior. • The tenant reported the theft of tools on 30 November 2023. The tenant stated that someone in a white van had been seen working for the owner at the Water Lilly beds behind the house. • The tenant’s partner, [the tenant’s partner], reported damage to her vehicle on 22 December 2023. The tenant’s partner stated that she was threatened with a long metal bar which was used to smash a window in her face. She identified the owner and her son as the perpetrators.

The tenant produced a short video at the hearing. It shows an Asian woman with short grey hair walking next to the house. The woman says loudly: “Can you please go!” [the tenant’s partner] replied: “We have one load to go, I told you”. The woman replies but her comments are indistinct. [the tenant’s partner] responded: “No, no, we had until today”. The woman then replied: “No, you had to go yesterday”.

The tenant’s partner gave evidence that, after the video was taken, the bathroom window was smashed in her face and her car was damaged. The Police were called.

Mrs He denied going to the property before the final inspection by the property manager on 23 December 2023 and denied that it was her on the video. The owner suggested that the tenant’s dog had bitten the neighbours and maybe someone wanted to take revenge. She said a neighbour had called her and said the tenant’s dog had bitten one of their animals. Her husband was in China at the time of the incident. If she knew anything about what had happened, she would pass this onto the tenant, but he was wrong to accuse her. The owner also said the tenant had reported Asian people in a car near the property and suggested the tenant knew some Asian people who looked like her.

I have little doubt that the owner was present at the premises on 22 December 2023. Having seen Mrs He at the hearing, she matches the description of the woman briefly shown on the video. The conversation between the Asian woman on the video and [the tenant’s partner] only makes sense in the context of the Tribunal hearing the previous day. Although the Tribunal order granted immediate termination, the law precludes enforcement of any order for 48 hours and tenants therefore have a stand-down period to vacate (see section 138 of the District Court Act 2016).

Pursuant to section 63 of the Act, no person shall enter into possession of any residential premises in the occupation of a tenant, except with the tenant’s consent or pursuant to an order for possession that is enforced pursuant to section 106 of the Act. In other words, the Tribunal’s order could only be enforced as a warrant for the recovery of land through the Court Bailiff. It is an offence to enter onto any land being residential premises for the purpose of taking possession of that land without the consent of the tenant.

I am unable to determine whether the owner was involved in the earlier incidents. The tenant provided screenshots from security cameras showing a man dressed in black outside the property. He may be wearing a mask but in any event his features are obscured. The tenant has speculated about who the man is but in my view his identity has not been established. The tenant was in rent arrears from late September 2023 onwards, so the owner may have been motivated to pressure the tenant to leave. There are texts from the property manager stating that the owner needed the property for her workers. Equally, on the tenant’s evidence, neighbours had started occupying the other house just prior to the start of these incidents. I understood from the tenants that the neighbours may have had gang affiliations. There is no doubt that the tenant’s property was stolen and damaged, but I am not satisfied the owner was responsible.

The owner’s behaviour on 22 December 2023 was a breach of section 63 of the Act and a breach of the tenant’s right to quiet enjoyment pursuant to section 38 of the Act. It may have been part of a wider campaign of intimidation, but as discussed above, that is unclear. The evidence from the tenant’s partner connects the owner’s visit with damage to the bathroom window. I found [the tenant’s partner] to be an honest witness but there is no other evidence corroborating her version of events in this respect, because the video does not capture the infliction of damage to the premises while the owner was on site.

In the circumstances, I find that the landlord’s conduct on 22 December 2023 amounted to harassment pursuant to section 38(3) of the Act, and that the conduct was intentional and designed to adversely affect the tenant. The tenant and his partner were forced out of the premises prematurely and in a manner contrary to law. The timing of the eviction, so close to Christmas, must have added to the tenant’s distress. I acknowledge that the owner provided text messages from the tenant in November 2023, in which he appears to imply the owner’s digger could be damaged in response to the incident on 30 November 2023. The owner submitted that the tenant was not entirely innocent. That may be the case, but it does not alter my view of the owner’s conduct.

The public interest strongly requires that due process is followed and that tenants are evicted lawfully when their tenancies are terminated by the Tribunal. After considering the factors in section 109(3) of the Act, I find it would be just to award exemplary damages against the owner. I award exemplary damages in the sum of $1,250.00. Unlawful residential premises

Section 78A of the Act applies when the Tribunal determines that any premises are “unlawful residential premises”. This means premises that cannot lawfully be occupied for residential purposes because the landlord’s failure to comply with section 36 or section 45(1)(c) of the Act has caused the occupation to be unlawful or has contributed to that unlawful occupation.

Section 36 requires a landlord to take all reasonable steps to ensure there are no legal impediments to occupation for residential purposes, and section 45(1)(c) concerns the landlord’s obligation to comply with legislation relating to buildings, heath, and safety relating to the premises.

Premises have been held to be unlawful where, for example, there has been an unconsented change of use (Harding v Caroto [2023] NZDC 5981) a failure to obtain a code compliance certificate (Kemp v Elliott [2022] NZDC 17792) or failure to comply with a resource consent requirement (Chen v Kumar [2022] NZDC 7783).

The premises fall under the auspices of the [Regional] Council. The premises are in the rural zone under the [Suburb] section of the [Regional Council] Plan. Part 23A of the Plan lists the permitted activities in the rural zone. These include one dwelling house per rural lot, and two dwelling houses per rural lot where the lot is larger than 40ha. It follows that only one dwelling was permitted without a resource consent.

Under Part 50 of the Plan, a “dwelling house” means a detached or semi- detached residential building designed for, or occupied exclusively by one household, and which is the only residential building on the site. A “household” means a self-contained housekeeping unit, of one or more persons occupying and using a building for normal domestic residential or housekeeping activities.

A “semi-detached unit” means each unit of a development of two or more attached “residential buildings”, whether of one or more storeys, which is, or will be by way of freehold subdivision, the only residential building or unit on its site but which shares a common (freehold) boundary with the unit(s) to which it is attached. A “unit” means the “residential building” occupied by “one household”. A “residential building” means any building or part of a building used or intended to be used for ongoing human habitation by a household.

The two houses on site are attached because they are connected physically by a small hallway. However, they do not meet the definition of “semi-detached unit”, because they are on the same certificate of title and do not share a legal boundary. It is more appropriate to view the two houses as together comprising a detached residential building.

The tenant said that, at the time, he was in urgent need of housing and was grateful for anywhere to live. He moved in without first viewing the property. At the first hearing, the owner’s representative said the entire property was offered to the tenant, who opted to reside in the part of the house that had no kitchen, but he could access both houses. The property was not rented to more than one tenant. The premises were consented for one household and only one household lived there.

In initial written submissions, the owner’s representative stated: I would like to point out that although the house...is made up of two previously detached houses joined together, it is both legally and practically one single dwelling in its current state, and that is what it is consented for by the [Regional Council]. That is also what the house...has been used for...The other part of the house was never rented out or occupied by the owner or anyone else for that matter while [the tenant] was staying there.

In later submissions, Mr Huo stated that: Regarding the claim that the house...is not building code compliant...There is only one single dwelling at [the tenancy address], and that one single dwelling is code compliant, as proven by the attached Code Compliance Certificate...

The Tribunal heard conflicting evidence about whether the doors leading from the two houses to the connecting hallway were locked or lockable, and whether the other house was occupied. There is a text message from the property manager stating that the tenant’s dog went to the 4-bedroom house and “hurt the people there”. The presence of neighbours was mentioned in the tenant’s Police report relating to the incident on 4 November 2023. I find on the evidence that the larger house was occupied from November 2023 onwards but had been vacant before then.

I find that the two houses together constituted a detached residential unit or “dwelling house” that could be occupied by one household under the Plan. It was not occupied as such because I accept that the tenant only had access to the smaller property. The evidence indicates the two properties were to be marketed separately and the houses were later rented out as two households. That was not permitted under the Plan in the absence of a resource consent permitting two dwellings. I find on the available evidence that the premises were unlawful pursuant to section 78A of the Act.

In an email “to whom it may concern” dated 13 May 2024, the property manager stated: After moving in a day or two, [the tenant] called to complain there was no kitchen, but before moving in, I did clearly mention to [the tenant] the property he is renting is the back part of the house, 3 bedrooms with no kitchen but a kitchenette (with no oven). ... Also, at the same time, we consulted tenancy services and realised that without a proper kitchen, [the] tenancy agreement will not be valid. So, we thought it is the ideal result of [the] mutual agreement to end this tenancy agreement.

The property manager explained that she agreed with the tenant that, due to the lack of a kitchen, he could move out at any time without giving notice. She referred to a suggestion from the tenant that he build a kitchen in the lounge area, but this was not approved.

According to her email, on 22 June 2023 the property manager conducted an inspection and offered the tenant the front house with a proper kitchen. The tenant declined this proposal. The tenant mentioned that a friend might want to rent out the front house. The property manager noted that they would “...sign up under one tenancy agreement”.

I have had regard to the factors identified in Presland & Co Trustee Company Limited v Makele [2022] NZDC 21087 at paragraph [34] in relation to “special circumstances”. The tenant moved into the premises because he urgently needed accommodation. He paid rent for about 4 months and then paid no rent for the remaining 3 months of the tenancy. He was inconvenienced by the lack of a proper kitchen throughout the tenancy, about 7 months, there being no facilities enabling the preparation and cooking of food. The property manager gave the tenant the option to leave without notice because of this but the evidence suggests he did not have many affordable alternatives.

There is a presumption that the Tribunal will not order payment of rent arrears (section 78A(3) of the Act). However, having regard to the special circumstances discussed above, I consider it would be unjust not to award any rent arrears to the landlord. The breach which has made the premises unlawful for residential use is technical. The main adverse effect on the tenant was the lack of cooking facilities, which were also required by the Housing Improvement Regulations 1947. I award the rent arrears less a downwards adjustment of $1,500.00. The total rent award to the landlord is therefore $5,978.57 ($7,478.57 less $1,500.00).

There is also a presumption that the Tribunal will not award compensation. I consider it would be unjust not to award the amounts specified at paragraphs 28(b) and 28(c) above. The proposed award at paragraph 28(a) relates to the tenant’s reorganisation of the cabinetry to create a makeshift kitchen. Although this was a breach of the Act, it was a consequence of the tenant not having kitchen facilities as required by the Housing Improvement Regulations 1947. I decline to make this proposed award. The result is that the landlord is awarded $264.00 for the backdoor and wall repairs. The other compensation claims are dismissed. Property manager’s liability

I have considered the property manager’s liability for renting unlawful residential premises. It follows from the discussion above about the terms of the tenancy agreement that ML Management was a contracting party.

I consider it would be contrary to the substantial merits and justice of the case to make an order against the property manager, for two reasons. The first is that ML Management were in fact acting as agent to the owner, and the tenant appears to have appreciated that, notwithstanding the terms of the tenancy agreement. An agent is not usually liable under contracts made on behalf of their principal.

Secondly, it was fundamentally the owner’s responsibility to ensure that the premises could be lawfully occupied for residential purposes. The property manager appears to have realised there was potentially an issue and tried to mitigate the situation. However, the owner is liable because they controlled both the use to which the premises were put and the activities for which the premises were authorised. Healthy Homes Standards

The tenant identified a leak from the living room window as a breach of the Healthy Homes Standards. I see this as a potential breach of the landlord’s maintenance obligation. There is no evidence about how bad the leak was or how it affected the tenant’s occupation of the premises. I decline to award any compensation for failure to maintain.

The owner’s representative submitted that the premises were compliant with the Healthy Homes Standards. I note, however, that the Healthy Homes Report following an inspection on 7 July 2023 appears to treat both houses as a single entity. It records that there was an extraction fan in the kitchen and refers to 7 bedrooms and 3 bathrooms.

It is likely that the separate premises occupied by the tenant were not compliant with the Healthy Homes Standards. There was no ventilation from the kitchen (nor could there be, in the absence of such an area). The inconvenience this caused the tenant has been addressed above and I decline to make any further award. Interference with water supply

Section 45(2) of the Act provides that the landlord will not interfere with the supply of water to the premises. The tenant accused the landlord of emptying their water tanks. The owner’s representative disputed this and stated that the tenant had simply used up the water.

It is unclear whether the water was (wrongfully) turned off by the landlord, or the supply simply ran out and needed to be replenished. Filing fee and suppression

Both parties have had some success. It is appropriate that they bear their own costs.

There was no request for suppression.

I have granted the property manager and the tenant’s partner suppression of the Tribunal’s own motion (section 95A(4) of the Act).

Reasons

Claims and awards in Tenancy Tribunal application 4739070 — net $2,792.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 22 December 2023	$7,478.57		Rent arrears to 22 December 2023
Repairs to walls and door	$264.00		Repairs to walls and door
Exemplary damages – harassment		$1,250.00	Exemplary damages – harassment
Unlawful premises – deduction from rent arrears		$1,500.00	Unlawful premises – deduction from rent arrears
Total award	$7,742.57	$2,750.00
Net award	$2,792.57
Total payable by Tenant to Landlord	$2,792.57