What was Tenancy Tribunal case 4774240 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4774240?

Compensation: Power Costs: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4774240?

The dispute type was not classified.

Where can I read the official tribunal order for case 4774240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9871520-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4774240 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4774240?

Compensation: Power Costs: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4774240?

The dispute type was not classified.

Where can I read the official tribunal order for case 4774240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9871520-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4774240 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4774240 — net $120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: power costs	$100.00	power costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$120.44
Total payable by Landlord to Tenant	$120.44

Claims and awards in Tenancy Tribunal application 4774240 — net $120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: power costs	$100.00	power costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$120.44
Total payable by Landlord to Tenant	$120.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and the Landlord name and identifying details
[The landlord/s] must pay [The tenant/s] $120.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing with the owner of the premises and her appointed property manager in attendance.
[The tenant/s] has filed a claim seeking compensation and exemplary damages for alleged failures by the landlord as follows: a. to repair a ceiling following a leak from the upstairs flat; and, b. to take reasonable steps to stop neighbouring tenants from interfering with the tenant’s reasonable peace and comfort in the use of the premises by smoking cannabis which permeated these premises.
The tenant claims that the landlord has breached their obligations under sections 38 and 45 of the Residential Tenancies Act 1986 (RTA).
Under section 45(1)(b) RTA, a landlord must provide and maintain the premises in a reasonable state of repair. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
Under section 45((1)(e) RTA, a landlord must take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. A breach of this obligation is not an unlawful act for which exemplary damages may be awarded.
Under section 38(2) RTA, a landlord must not cause or permit interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 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.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. Background facts and evidence
The premises are a ground floor 2-bedroom flat contained in a building with a separate flat above. Both are owned by the same owner, but only the ground floor flat is managed by the property managers. In mid-October 2023, a leak occurred in the hallway ceiling of the ground floor flat. The leak appeared to come from the bathroom of the upstairs flat. The landlord made an insurance claim and steps were taken to have contractors install driers, make safe the electrical fittings and replace fittings and clean the affected carpet. On Sunday, 12 November 2023, the tenant reported a second leak in the same area. Water was dripping through a light fitting in the hallway ceiling from the bathroom area of the first-floor flat. The tenant reported the leak directly to the owner who asked that they contact the property manager. The tenant advised that they had contacted the afterhours Call Centre for the property manager but had no response for 5 hours. The owner confirmed that she would need to inspect both flats with a plumber and work with the property manager.
On Monday 13 November, the property manager arranged for an electrician to attend the premises and disconnect the light fitting. On Tuesday 14 November, the owner attended the premises with a plumber. She reported the findings and steps taken to the tenant. The ceiling cavity was opened up and the source of a slow leak behind the upstairs flat shower head was identified. The plumber advised that there was enough water to cause the damage to the ceiling over some time. The leak was fixed by replacing the plumbing. The plumber advised that the ceiling cavity was very wet and should remain open for 3-4 weeks to dry out and the area should be monitored after shower use to ensure no further leaking occurred. The plumber also advised that while the ceiling cavity was drying, the outside hallway door and the bathroom window of the premises should remain open as much as possible for maximum airflow. Only when the area was sufficiently dry should the ceiling be closed up, plastered and painted. The owner also suggested to the tenant that when the exterior hallway door needed to be closed, they could leave the small casement windows in the far (vacant) bedroom open to help with airflow.
On 27 November, the tenant noticed a smell of cannabis through the open ceiling cavity from the upstairs flat. They visited the upstairs flat and requested them to stop smoking. The tenant then reported the cannabis smell to the owner the next day. The tenant reported smelling cannabis again on 28 November and 30 November. The owner asked the tenant to contact the property manager about the issue for advice. The property managers suggested contacting the Police. The tenant did so, but Police took no steps and the tenant says Police advised it was a tenancy issue. The owner also offered to cover the cavity with flute board (recommended by the plumber) to prevent smells permeating through the cavity from the upstairs flat. This was fitted on 1 December as a temporary covering. In addition the owner, visited the upstairs tenants on 2 December 2023 advising them of the allegations of cannabis smoke and reminding them that there was to be no smoking or use of illicit drugs on the property. The tenant reported the smell of cannabis through the cavity ceiling again on 3 December and 9 December. The owner says she gave the upstairs tenants a formal written warning on 3 December about smoking and drug use at the flat.
On 4 December, the tenant issued a 14-day notice requiring the landlord to adequately seal the ceiling cavity by 19 December to prevent the smell of cannabis and other contaminants permeating into the hallway which was affecting their quiet enjoyment in the use of the premises and health. The tenant said that the smell caused them to lose sleep and they had to take sick leave from their job as a tutor, for which there is no entitlement to sick pay as a casual contractor.
The property manager responded to the 14-day notice by email on 5 December advising the ceiling could not be fully closed off and reinstated until it was fully dry and was inspected by an insurance assessor. They also maintained that the owner had taken appropriate action with regard to the tenant’s allegation of the upstairs tenants smoking cannabis.
On 11 December, an insurance assessor visited the premises. On 14 December, the owner’s insurers approved cover of the repair works and the contractor advised that they would likely be able to start the work mid-January 2024.
On 24 December, the tenant again sent the owner a text which advised of a cannabis smell from the vicinity of the upstairs flat but not coming through the ceiling. On the same day, the owner issued a 14-day notice to the upstairs tenants requesting that they remove all illegal substances from the property and cease smoking. This was followed up by an inspection on 7 January 2024 in which the owner says she did not detect any signs of smoking or drugs at the upstairs flat. The tenant did not report any further instances of a cannabis smell through the ceiling since 9 December, nor any cannabis smell in “the vicinity” of the flat since 24 December.
The property manager visited the premises again on 22 December to see if anything could be done to improve the temporary ceiling cover and instructed a builder to look at the issue. The tenant says the builder advised he would come back and do a further repair but he did not return. The property manager’s evidence is that the builder advised that nothing much further could be done without applying a permanent seal around the flute board, which was not appropriate pending the permanent remediation work that was to be scheduled and carried out by the contractors approved by the insurer.
The work to reinstate the ceiling started on 16 January and the ceiling cavity has now been closed.

Has the landlord breached their obligation to maintain the premises?

It is well settled that, the landlord’s obligation under section 45(1)(b) is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
After carefully reviewing the available evidence, I am satisfied that the landlord took steps to deal with the ceiling leak in a reasonable timeframe. The leak was found and repaired within 2 days. I accept that the ceiling cavity had to remain open to dry out. Subsequently, there was some delay in completing a permanent remediation of the ceiling due to time needed to process the insurance claim and availability of contractors. However, I do not find that this delay is unreasonable and it does not amount to a breach of the landlord’s obligations under s45(1)(b).
However, I am satisfied on the evidence, that during the drying out process, it was recommended that the tenant keep the exterior hallway door and bathroom window open as much as possible for airflow. The tenant reported that he works from home part time and, keeping the door and window open caused draughts and cold which necessitated more than usual use of the heat pump. He seeks recovery of $105.07 to cover the estimated extra electricity costs he incurred as a result. I consider that extra power usage is a loss suffered as a result of the leak, for which the landlord is liable for the repairs and associated costs. Therefore, the tenant should be compensated. I award $100, which I consider is reasonable for the period required for drying out the ceiling cavity. Has the landlord breached their obligation not to cause or permit interference with the tenant’s reasonable quiet enjoyment of the premises?
When the tenant reported smelling cannabis through the ceiling cavity, the landlord sealed the cavity with a temporary board. The tenant claims that this was not sufficient to prevent the smell of cannabis permeating, but I am not persuaded that the landlord could do anything further pending the permanent remediation work scheduled in January 2024. Also, there is insufficient evidence to establish that the smell was cannabis and/or that it was permeating through the ceiling. In any event, I am satisfied on the evidence that the landlord took reasonable steps to address the allegations of cannabis use by formally warning the upstairs tenants and issuing a 14-day notice against them. In that regard, there were no more reported incidents of cannabis smell through the ceiling since 9 December 2023. The tenant’s other reported smell of cannabis was “in the vicinity” of the upstairs flat but not through the ceiling. There were no other reports since then, which would indicate that the upstairs tenants, if responsible for the smell, were complying with the landlord’s warnings and notice. Therefore, I find that the landlord is not in breach of s38(2) nor s45(1)(e) and has taken reasonable steps to prevent other tenants from interfering with this tenant’s reasonable quiet enjoyment of the premises. The claim is dismissed. Suppression
Both parties have applied for suppression orders. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. See section 95A(1) RTA.
The tenant sought compensation of $1,443.57 plus exemplary damages but has been awarded $100 compensation and the filing fee on the application. Therefore, he has not succeeded substantially with the proceedings and would not be entitled to name suppression. On the other hand, the landlord has substantially succeeded in defending the bulk of the claims and is entitled to suppression. There are allegations of drug use against the upstairs tenants mentioned in this decision which are not proved and are prejudicial to those other tenants. Therefore, the address of the premises should be suppressed. There is some risk that publication of the tenant’s name in these proceedings would enable discovery of the identity of the premises and the upstairs tenants. Given the circumstances, and on the basis that I also consider that the tenant’s identification and the proceedings issued are not in the public interest, I am also ordering suppression of the tenant’s name and identifying details.

Tenancy Tribunal case 4774240 — Tenancy dispute

At a glance

Tenancy Tribunal case 4774240 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord breached their obligation to maintain the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord breached their obligation to maintain the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions