What was Tenancy Tribunal case 4750252 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $902.86 immediately, being rent

How much money was awarded in case 4750252?

Rent Arrears: $3,942.86 awarded to landlord

What type of tenancy dispute was case 4750252?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4750252?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10175385-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4750252 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $902.86 immediately, being rent

How much money was awarded in case 4750252?

Rent Arrears: $3,942.86 awarded to landlord

What type of tenancy dispute was case 4750252?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4750252?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10175385-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4750252 — Rent arrears

Claims and awards in Tenancy Tribunal application 4750252 — net $902.86 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$3,942.86	Rent arrears
Net award	$902.86
Total payable by Tenant to Landlord	$902.86

Claims and awards in Tenancy Tribunal application 4750252 — net $902.86 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$3,942.86	Rent arrears
Net award	$902.86
Total payable by Tenant to Landlord	$902.86

Order

[The tenant/s] must pay [The landlord/s] $902.86 immediately, being rent arrears to 25 November 2023.
The Bond Centre is to pay the bond of $3,040.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended the hearing on 5 April 2024.
The dispute relates to premises at [Tenancy address suppressed] (“the premises”).
The tenancy commenced on 26 May 2022. The tenancy was for a fixed term. An extension to the initial tenancy agreement shows that the fixed term was to end on 25 November 2023. There was some dispute from the tenant as the final date for the tenancy. I prefer the evidence contained in the signed extension agreement that the final date was 25 November 2023.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the tenant must establish that what they are claiming is more likely than not and similarly, the landlord must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails and photos. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner. Claims
The landlord seeks rent arrears of $5,142.86.
The tenant seeks orders; • Releasing the bond. • Releasing her from a fixed term tenancy. • Abatement of rent. • Termination of the tenancy as it would be unreasonable to require the tenant to continue with the tenancy albeit at a reduced rent. Tenant evidence
The premises are in a rural area outside [Town]. The premises consist of a single level, 3-bedroom home on over 5,000 sqm of land. A Department of Conservation forestry area adjoins the premises above and at the rear. The premises are at the end of a long driveway. The tenant thought that the driveway was 200-300 metres long. That driveway then joins a further driveway shared with neighbours which runs onto what is called “[road].” [road] runs onto the main [Suburb]-[Town] road.
On Thursday 21 September 2023, there was a major weather event in the [Town] area. The heavy rain resulted in a civil defence emergency being called in [Town] on Friday 22 September 2023 at 6.33 am. The local emergency finished at 10.02 am on Monday 25 September 2023.
The tenant said that the substantial rain caused a landslip at the rear of the premises. The rain caused substantial rain and mud to run over the driveway to the premises and the shared driveway.
The tenant left her home to investigate the damage. The tenant took photos of the scene including both her driveway and the shared driveway which were provided in evidence. The photos show streams of water and mud flowing freely along the driveway.
The tenant was worried about what may occur because of the continued flow of water. The tenant collected her bag and got into her car. The car was an all- wheel drive SUV. The tenant said that she wasn’t sure if she was going to be able to navigate the driveway in her vehicle due to the mud and water.
The tenant said that as she drove off down the driveway there was substantial water flow and debris. She managed to get to the intersection of the shared driveway and [road]. A neighbour said to the tenant that if she didn’t leave the property then she may be unable to do so later in the day.
The tenant attempted to turn into [road]. She was directed by her neighbour in an attempt to keep her away from the worst areas of the damaged road. The tenant said that the flow of water was so strong that her vehicle was lifted by the water The tenant made it to the end of the road and was able to turn onto the main road. The tenant drove a short distance and then pulled over to regain her composure. The tenant said that she was very shaken and frightened by the incident.
The tenants drove to a friend’s house and stayed there.
On Saturday 23 September 2023 the tenant drove back to the premises to see if she could gain access to the premises. She parked her car at the bottom of [road]. She walked up the driveway where she met and spoke to one of her neighbours. The neighbour said that the tenant would have trouble getting her car around the bend on the driveway leading up to her house. The tenant provided photos of the driveway showing that quite deep trenching had occurred in areas. The tenant said that there were still deep pools of water and mud. In some areas, the water and mud came over the top of the tenant’s gumboots.
The tenant decided not to take her car up the drive to the house as she didn’t wish to cause further damage to her car.
The tenant returned to the premises on Monday 25 September 2023. A neighbour had cut back bushes on his adjoining property so that he could get out of his property and travel to work.
There trench was still in the driveway leading to the premises.
An EQC representative was present and spoke to a neighbour. The representative said that he was concerned about the risk of further slips if weather conditions worsened.
The tenant said that she was very worried. She said that above and to the rear of her property was a water tank which serviced the premises. She was nervous that in the event of further rain, the tank may come down the bank and enter the house endangering her safety.
The tenant said that no DOC representative had been to the premises at this time.
The tenant did not try to drive up the driveway on 25 September 2023 as whilst she said there was less water than there had been previously, the drive was still very muddy.
On Tuesday 26 September 2023 the tenant returned. The weather had improved. The tenant could see the tyre tracks of another vehicle that had gone up the driveway some time previously. The tenant drove up the driveway following those tracks. The tenant said that she drove up cautiously, but that the rear of the car wasn’t stable during the drive.
The tenant took further photos of the driveway. The tenant said that she was nervous and apprehensive and didn’t want to get stuck or cause further damage to her car.
Evidence was provided by the tenant that she had damaged her car whilst attempting to leave the premise on Thursday 21 September 2023. The evidence showed that the damage was sufficiently serious that the vehicle was subsequently written off by her insurers.
Whist at the house on Tuesday 26 September 2023, the tenant said that there was no damage to the structure that she could see.
The tenant left the premises. She said she didn’t know what was happening at that stage. She didn’t know if her house would be “red stickered” by the local council or what steps EQC might take.
The tenant did not think she could access her home as a result.
The tenant said that no repairs to the driveway have taken place to her knowledge since the incident occurred.
The tenant did not think that she could live in the premises as she couldn’t get access to them.
The tenant arranged to remove her belongings. On 6 October 2023, she had a furniture mover attend the premises. The furniture removal company brought a large truck and a smaller truck as they were concerned about access on the driveway. The tenant said that the truck driver used the big truck to remove her belongings. Manoeuvring the truck around the bend in the driveway proved to be difficult. The driver spent 30 minutes digging out mud with a shovel as he didn’t want to get stuck and have mud enter the engine. The smaller truck did get stuck and had to be towed out from further down the driveway. I record that the tyres in a removal truck and the space between the chassis and the road would be greater than in a standard SUV.
On 21 September 2023, the same day as the flood, the tenant received a notice of termination from the landlord. The landlord gave the requisite notice on the basis that the landlord wished to return to live at the premises. I accept that the timing of the notice was no more than coincidental.
The tenant is elderly and explained that she had a number of health incidents during 2023.
The tenant paid rent of $800.00 on 28 September 2023 and again on 12 October 2023. No further payments of rent have been made to the landlord. The landlord provided a rent summary showing that the rent arrears at the end of the tenancy on 25 November 2023 was $5,142.86.
The landlord said that there has never been any agreement to end the tenancy early. The landlord said that the keys to the premises had been returned by the tenant on 25 October 2023 and that the landlord re-entered the premises after the fixed term expired on 27 November 2023.
The landlord said that she had been to the tenant’s neighbouring premises (who were also clients) on Thursday 21 September 2023. She accepted that the flow of water and mud had caused damage to the driveway for the premises and the shared driveway.
The landlord subsequently spoke the local council and EQC. The premises were never red stickered.
The landlord provided photos taken by the landlord on 12 October 2023, two weeks after the event. The landlord says that the photos show that the premises were accessible by the tenant. The landlord has provided a date stamped copy of the photo as the tenant disputed the date on which the photo has been taken. The photo does not show all of the driveway and in particular does not show the bend in the driveway and the driveway leading up to the premises. It is the bend that the tenant referred to the removal driver having difficulty negotiating.
The landlord said that she told the tenant in correspondence that the premises were not inaccessible or unsafe. The landlord says that this assertion was based on her experience in dealing with other residential tenancies, the local council and EQC after the event. Where premises were deemed unsafe, they were issued with a “red sticker.”
14 day rent breach notices were subsequently served on the tenant by the landlord.
The first tenant claim is for a reduction or termination of the fixed-term tenancy. Section 66 RTA provides that the Tribunal may reduce or end a fixed term where there has been a change in the applicant’s circumstances which was unforeseen and which will result in a severe hardship to the applicant if the tenancy is not ended. The severe hardship to the applicant must be greater than the hardship to the other party if the term was reduced.
In my view the terms of s.59 RTA are more in line with the events of this matter than the provisions in s.66 RTA. Section 59 RTA provides; (1) Where, otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), the premises are destroyed, or are so seriously damaged as to be uninhabitable, — (a) The rent shall abate accordingly; and (b) Either party may give notice to the other terminating the tenancy. (2) Where a landlord gives notice of termination under subsection (1) of this section, the period of notice shall be not less than 7 days. (3) Where a tenant gives notice of termination under subsection (1) of this section, the period of notice shall be not less than 2 days. (4) Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable, — (a) The rent shall abate accordingly; and (b) Either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent.
The definition of “premises “ in the RTA includes “any land...”. I consider that the driveway including the shared driveway is included under the definition of premises in the RTA.
The terms of s.59(4) RTA seem pertinent to the fact of this case.
The first issue for me to consider is whether the premises have been partially destroyed or part of the premises are so seriously damaged as to be uninhabitable.
The following evidence persuades me that as of the date of the weather event and for at least some weeks afterwards, the premises had been partly destroyed, rendering the premises uninhabitable. Photos show that in that period the driveway was essentially unpassable.
The tenant, in attempting to leave the premises on 21 September 2023, caused sufficient damage to her car that it had to be written off. As of 6 October 2023, the premises were only accessible by a large truck and only after 30 minutes of digging by the driver.
There is no definition of “ uninhabitable’ in the RTA. The term was considered by the District Court in the aftermath of the Canterbury earthquakes.
Judge Kellar in Watkin v Brazier Property Investments Ltd (2012) DCR 186, held that uninhabitable was not defined in the Act, nor the Oxford English Dictionary, but noted that the dictionary defined “habitable” as “suitable for habitation as a human abode, fit to live in”, and “uninhabitable” as “incapable of being inhabited, occupied or tenanted”. The Judge concluded that “uninhabitable” must denote a state which lacked those qualities. However, Judge Kellar considered that the dictionary definitions did not advance the matter and the meaning of habitable is very much dependent on context. Therefore, “the term should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time.”
In First Avenue Property Ltd v Malik DC Christchurch CIV 2011-009-1530, 23 November 2011 the Court considered that a liberal approach should be taken to the interpretation of “uninhabitable” and each case will depend on its own facts. Interestingly, for the purposes of this case, Judge Moran said that when assessing whether a property is uninhabitable, the personal circumstances of the tenants should be taken into account: “It is for the Tribunal to determine just what the damage was that was occasioned by the earthquake, what effect it has had on the tenants and then to decide whether these premises are so seriously damaged as to be uninhabitable. That, in my judgment, also involves having regard to the personal circumstances of the tenants. For example, young men occupying a flat might be more robust and able to put up with the privations of earthquake damage than, say, a young family with a child who had bronchial problems that are exacerbated by liquefaction dust or even an elderly couple whose mobility is affected by their age. These are circumstances that should be taken into account in deciding whether, in the particular case, premises are so badly damaged as to be uninhabitable.”
In this case, the tenant is an elderly lady who does not enjoy good health. I consider that evidence discloses that initially the tenant could not reasonably have been expected to get access to the premises, thus rendering them uninhabitable.
The house being uninhabitable consideration must now be given to the abatement of rent.
In Mauger v Kennard Real Estate Ltd DC Christchurch CIV 2022-0091428, 22 November 2011, the court considered a case where a tenancy was due to commence on 11 March 2011. The premises were not structurally damaged in the February 2011 earthquake, but were without water, sewerage or electricity. The tenants advised the landlord on 2 March 2011 that they would not take up the tenancy. Services were restored to the premises on 25 March 2011.
The landlord applied for rent from the start of the tenancy until the premises were relet on 7 April 2011. The judge considered the premises uninhabitable and that being the case, rent was abated to 50% for the period the premises were uninhabitable (namely from the commencement of the tenancy until services were restored on 25 March 2011).
In my view it would not have been unreasonable to expect the tenant to continue with the tenancy from the time when access to the premises was with a degree of safety, possible.
The photo provided by the landlord which was taken on 12 October 2023 shows a substantial improvement over part of the driveway during the period following the weather incident. It does not show all of the driveway.
The tenant evidence was in my view sufficient to show that access, for someone with the tenant’s personal circumstances, was not possible from 21 September 2023 until 25 October 2023 when the tenant was last at the premises. It may be that it remained uninhabitable after that date, but I cannot be more certain than not and the burden of proving this is on the tenant.
I consider that a 50% abatement of rent from 21 September 2023 to 25 October 2023 to be fair. The cause of the damage was not the landlord’s fault and the landlord has his own obligations to meet ( see First Avenue Property Ltd v Malik (supra.).
The abatement results in an abatement in favour of the tenant of $2,000.00 for the period 21 September 2023 to 25 October 2023.The tenant has also paid $1,600.00 in rent during that period leaving a balance owing to the landlord for that period of $400.00. The balance of the amount due to the Landlord for rent for the period from 26 October 2023 to the end of the tenancy on 25 November 2023 ($3,542.86) is proven.
The evidence is not sufficient in my view, to allow for the termination of the tenant as the tenancy could have continued after 25 October 2023 until the end of the tenancy.
During the course of evidence, reference was made to the premises being unavailable to the tenant due to flooring repairs. The tenant application to the Tribunal did not disclose that as an issue requiring consideration. The tenant accepted that no agreement had been entered into with the landlord allowing for rent abatement or compensation during that period. No order is made with respect to that claim.
Both parties have applied for name suppression. Suppression must be granted where the parties are wholly or substantially successful. In the circumstances of this case, somewhat unusually, I accept that both parties have achieved substantial success and accordingly the name and details of each party are to be suppressed.

Tenancy Tribunal case 4750252 — Rent arrears

At a glance

Tenancy Tribunal case 4750252 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions