What was Tenancy Tribunal case 4743069 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4743069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743069?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4743069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9927955-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4743069 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4743069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743069?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4743069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9927955-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4743069 — Harassment

Tenantcheck Insights

Reasons

Both parties attended the hearing.

The tenant seeks compensation and exemplary damages for breach of the notification requirements in terms of repairs and maintenance (section 48 Residential Tenancies Act 1986 (RTA)) and quiet enjoyment of the tenancy (section 38 RTA).

The tenant raised concerns throughout the hearing regarding the internal processes of Kāinga Ora–Homes and Communities (Kāinga Ora) in terms of its communication with tenants regarding significant repairs of tenant premises. Specifically, the tenant expressed concerns about the forms that tenants are required to sign prior to the commencement of significant works. The Tenancy Tribunal does not have jurisdiction to assess the merits of Kāinga Ora internal processes regarding significant repairs and maintenance but the representative from Kāinga Ora confirmed that the matters raised by the tenant will now be considered internally.

Whilst the tenant’s claims have been dismissed, the tenant might take some solace in the fact that the concerns raised regarding the forms that tenants were asked to sign prior to the re-roofing work will be reviewed and where appropriate revised going forward. Background

The tenancy commenced in 2019 and the premises is a single-story home in a block of three surrounding by other Kāinga Ora properties.

Kāinga Ora contracted a third-party contractor ([Property Maintenance Company]) to re-roof the tenants property along with several others located in the adjoining blocks.

In September 2023, a representative of [Property Maintenance Company] visited the tenant’s property along with others to explain the work that was to be undertaken and discuss the risks associated with the re-roofing and associated scaffolding. All tenants were handed forms to be completed titled: • Agreement between Kāinga Ora and maintenance Contractor for work on property; • Hazards Associated with Scaffolding Agreement between the Customer and [Property Maintenance Company]; and • Kia Ora Valued Customer.

The tenant refused to sign the forms and the work has not taken place at the tenant’s property as a result. The work was carried out to several other adjoining properties. Has the landlord failed to give the tenant sufficient notice of planned repairs and maintenance? The Law

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.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986. Facts and Findings

[The tenant/s] claims the Kāinga Ora should have given prior written notice to its tenants of the re-roofing project rather than sending a representative from its contractor [Property Maintenance Company] to attend tenant premises to explain the work that was to be carried out and the risks linked thereto.

The tenant submits that the re-roofing project was a major undertaking that must have been planned months in advance. The tenant considers that the Kāinga Ora staff in the [City] office should have informed its Tenancy Managers so that the tenants affected could be informed prior to a representative of [Property Maintenance Company] attending to discuss the work in detail. The tenant’s concerns were heavily focused on the content of the forms that tenants were requested to sign.

The landlord’s comprehensive response to the tenant’s claim was that its contractor [Property Maintenance Company] attended the tenant’s premises to discuss the work they were undertaking prior to the work commencing and that no work has taken place at the tenant’s property as she did not sign the consent forms.

Whilst there may be merit in the lack of direct communication between the tenant and Kāinga Ora staff, it is clear that the landlord in this case has not breached section 48 of the RTA as the notice was provided by [Property Maintenance Company], a contractor of Kāinga Ora and in any event the work was never actually carried out at the tenant’s property.

It is worth noting that there is provision in the RTA for a landlord to enter the premises for the purpose of carrying out necessary repairs or maintenance between 8am and 7pm after giving the tenant notice of the intended entry and the reason for it at least 24 hours beforehand. 1 Despite this right, the landlord elected not to carry out the work at the tenant’s property. Accordingly, the tenant’s claim that the landlord breached section 48 RTA is dismissed. Has the landlord breached the tenants’ right to quiet enjoyment of the tenancy? The Law

A tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or by any person claiming through the landlord. See section 38(1) RTA. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is 1 Section 48(2)(d) Residential Tenancies Act 1986 modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant.

It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance or renovations) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.

Whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the work being carried out, and the length and degree of intrusion.

For a breach of either section 38(1) or 38(2), the usual procedure would be for the tenant to first ask the landlord to stop the offending activity and, if the landlord fails to do so, apply to the Tenancy Tribunal for appropriate orders.

Finally, section 48 RTA is relevant in this case and sets out the specific notice a landlord is required to give a tenant in order to enter the premises in different situations unless the tenant consents. Importantly, the reference to “premises” in section 48 does not include land. Therefore, the notice provisions in section 48 do not apply when the landlord is simply entering the land. However, even when entering the premises including the land legitimately, a landlord must still be careful not to breach the covenants for quiet enjoyment contained in sections 38(1) and (2) RTA. Facts and Findings

In summary, the tenant complained of deafening noise, including but not limited to, drilling, contractors walking on the roof, contractors yelling and swearing at one another, ladders rattling at night and rubbish being left behind. The tenant also complains that there was a lack of privacy as contractors were able to look in their windows whilst carrying out the work.

The landlord’s submits that the tenant did not raise concerns or complain about the work when it was carried out at the neighbouring properties and that no other tenants have complained. The landlord provided a timeline for the various re-roofing projects which indicate that the work was completed within a circa two-week period for each block of flats.

A key issue with the tenant’s application in this particular case is that the tenant failed to complain at any stage to the landlord regarding the impact of re-roofing work. The first the landlord heard of the tenant’s concerns was through the tenant’s application to the Tenancy Tribunal. If the landlord is not notified of the problem, it cannot take steps to address it. In the circumstances, it would not be reasonable to hold the landlord responsible for any disruptive behaviour by the contractors when the landlord was not informed about it. Even if the tenant had raised concerns, based on the timeline of the work, I do not consider that two weeks is an unreasonable period of time to complete a reroofing project on a block of flats.

In summary, after carefully reviewing all the available evidence including the oral evidence and submissions of the parties, I do not find that the landlord has interfered with the tenants’ quiet enjoyment of the premises for the reasons detailed. Access for the re-roofing works were notified in advance (even when not strictly required because the work was not carried out to the tenant’s premises). Where there may have been issues of concern (e.g. contractors’ behaviour; noise), the tenant did not notify the landlord of her concerns. The landlord cannot be held liable for something it has not been informed about nor had a fair opportunity to address and resolve. Accordingly, the tenant’s claim for breach of quiet enjoyment is dismissed. Suppression

The Tenant has submitted that the disclosure of her identifying details would compromise her safety. I accept this and shall grant name suppression to the Tenant. The Landlord has not requested name suppression. T Lee-Lewis 7 February 2024

Reasons

Both parties attended the hearing.

The tenancy commenced in 2019 and the premises is a single-story home in a block of three surrounding by other Kāinga Ora properties.

Kāinga Ora contracted a third-party contractor ([Property Maintenance Company]) to re-roof the tenants property along with several others located in the adjoining blocks.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

Tenancy Tribunal case 4743069 — Harassment

At a glance

Tenancy Tribunal case 4743069 — Harassment

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions