Published tribunal order
Tenancy Tribunal case 4761417 — Tenancy dispute at 7 George Street, Mangere East, Auckland 2024
Decided 11 Mar 2024 · Published 11 Mar 2024 · Application 4761417
- Cleanliness
- Filing Fee
- Healthy homes
- Leaks
- Mould & damp
- Smoke alarms
- State of repair
Order
- [The tenant/s] must pay [The landlord/s] $2,620.44 immediately, calculated as shown in the table below.
Reasons
- Both parties attended the hearing on 7 March 2024.
- The landlord has claimed rent arrears of $4,368.00 to 11 January 2024. The tenant disputes the claim. Background
- A summary of the background facts is set out below: • The landlord prepared a tenancy agreement for a fixed term from 1 December 2023 to 5 December 2024 at a weekly rent of $728.00 including $28.00 for water. The bond was $2,912.00. The agreement was never signed. • The tenant attended a viewing of the property on 11 November 2023. • On 12 November 2023 the landlord emailed the tenant requesting that the bond be paid and stating that a week’s rent in advance was payable on 1 December 2023. • On 13 November 2023, after paying $600.00 towards the bond, the tenant asked the landlord to take the property off the market. The tenant paid a further $1,000.00 towards the bond on 15 November 2023. • The tenant moved some of his belongings into the garage on 30 November 2023. • On 1 December 2023 the landlord texted the tenant, requesting that an automatic payment be set up for the rent to be paid every Friday. The tenant replied, stating that he was not happy with the condition of the house. He said it was dirty all over and the bins were full of rubbish. The tenant also referred to water leaking from the toilet. • The tenant moved into the property, probably over the weekend of 2-3 December 2023. • The landlord performed lock, electrical and handyman work which was completed by 9 December 2023. The locksmith was required because it was discovered the garage could not be locked. The handyman came to fix a loose tap and a window. The landlord said he would sort out the toilet leak if there was one. There was also discussion about a healthy homes report that was being obtained. • The tenant vacated the property on Friday 15 December 2023. The landlord re-let the property from 12 January 2024 at a weekly rent of $730.00. Relevant law
- The Tribunal has jurisdiction to make any order that the High Court or the District Court may make under any enactment or rule of law relating to contracts (Section 78(1)(h) of the Residential Tenancies Act 1986 (the Act)). This includes orders under the Contract and Commercial Law Act 2017 (the CCLA 2017).
- Pursuant to section 37 of the CCLA 2017, a party to a contract may cancel it if a term in the contract is breached by another party to the contract and the effect of the breach of contract is to substantially reduce the benefit or increase the burden of the contract to the cancelling party, or to make the benefit or burden of the contract substantially different from that contracted for. Analysis
- The tenant provided photographs in support of his position. He said they showed a window which came off and was hanging by its hinge. The tenant said this was not a minor issue as it could fall onto people or vehicles outside. The remaining photographs largely show the exterior of an older building probably in need of some painting and joinery maintenance. There are photographs of a lean-to roof outside made of corrugated plastic that looks in need of cleaning and/or replacement. Some of the fencing needed repair and the photographs show nails sticking out.
- The tenant referred to a healthy homes assessment and stated that the property did not comply. The landlord produced the report at the hearing. The inspection was performed on 16 November 2022. The property was found to be compliant in terms of insulation, heating, ventilation, drainage, ground vapour barrier, and smoke alarms.
- The tenant provided a photograph of the summary page of a healthy homes report from the same company. The page produced did not identify the property inspected. The summary page recorded non-compliance in terms of heating, kitchen and bathroom ventilation, and the ground vapour barrier.
- The landlord’s explanation for this discrepancy seemed to be that the assessor had not updated the report to reflect that there was actually bathroom ventilation. Still, it is difficult to understand how the page provided by the tenant could refer to the heat source being a wood burner when the report presented by the landlord shows a heat pump in the living room. The report from the landlord also specifically addresses and clearly shows a ground vapour barrier. I am unable to resolve the conflict between the page provided by the tenant and the complete report provided by the landlord. I prefer the complete report because it clearly relates to the subject property.
- Under the Residential Tenancies (Healthy Homes Standards) Regulations 2019, the property had to comply with the Healthy Homes Standards by the 120 th day after the start of the tenancy. The tenant did not stay that long and therefore, legally the property did not have to have a qualifying heater, mechanical ventilation for the kitchen and bathrooms or a ground moisture barrier. That is not to say there were no obligations on the landlord. Section 45 of the Act imposes maintenance obligations.
- The evidence provided by the tenant does not establish that the property had a significant issue with dampness or mould, or that it lacked insulation or a form of heating, or that the property overall had not been maintained in a reasonable state of repair, having regard to the age and character of the premises (an internet search suggests the property was built in 1949). The items of maintenance referred to above were either fixed by the landlord or can reasonably be viewed as relatively minor and/or straightforward to resolve. The correspondence shows the landlord taking steps to perform maintenance, including arranging for the lawns to be mown.
- The landlord was in breach of his obligations under the Act in the sense that the premises should have been provided in a reasonable state of repair. Some of the items of maintenance might have been identified if the landlord had performed an inspection. I agree with the tenant that the landlord had not allowed sufficient time between tenancies to perform necessary maintenance before the tenant moved in. However, for the reasons given above, the breach did not substantially reduce the benefit or increase the burden of the tenancy for the tenant and did not make the benefit or burden of the tenancy substantially different from that contracted for. I find that the tenant did not have a right to cancel the tenancy.
- The tenancy agreement envisaged a fixed term contract, although it was not signed. On the face of it, this means the tenant is liable for rent to the earlier of the expiration of the tenancy, or the re-letting of the property, subject to the landlord’s duty to mitigate his loss. On this basis, the tenant is liable for rent to 11 January 2024.
- The tenant’s liability does not materially change if, in the absence of a signed tenancy agreement, the parties should be treated as having impliedly agreed to a periodic tenancy. The tenant under a periodic tenancy must give 28 days' notice of termination. If the tenant’s departure on 15 December 2023 is treated as his notice, the notice period ran out on Friday 12 January 2024.
- I find that the tenant is liable for rent to 11 January 2024 in the sum of $4,200.00 (6 weeks at $700.00). From this the bond of $1,600.00 held by the landlord should be deducted. Filing fee
- The landlord’s application has been successful. I must award the filing fee.