What was Tenancy Tribunal case 4774457 about?

The tribunal order states: [The landlord/s] is granted possession of the premises at [Tenancy address

How much money was awarded in case 4774457?

Compensation: Electricity: $127.30 awarded to tenant; Compensation: Wi-Fi: $100.68 awarded to tenant

What type of tenancy dispute was case 4774457?

The dispute type was not classified.

Where can I read the official tribunal order for case 4774457?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9968862-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4774457 about?

The tribunal order states: [The landlord/s] is granted possession of the premises at [Tenancy address

How much money was awarded in case 4774457?

Compensation: Electricity: $127.30 awarded to tenant; Compensation: Wi-Fi: $100.68 awarded to tenant

What type of tenancy dispute was case 4774457?

The dispute type was not classified.

Where can I read the official tribunal order for case 4774457?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9968862-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4774457 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4774457 — net $227.98 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Wi-Fi	$100.68	Wi-Fi
Compensation: Electricity	$127.30	Electricity
Net award	$227.98
Total payable by Landlord to Tenant	$227.98

Claims and awards in Tenancy Tribunal application 4774457 — net $227.98 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Wi-Fi	$100.68	Wi-Fi
Compensation: Electricity	$127.30	Electricity
Net award	$227.98
Total payable by Landlord to Tenant	$227.98

Order

[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 11.59 am on Friday 23 February 2024
The landlord must pay the tenants $227.98 immediately.
The landlord must refund all rent payments made by the tenants since 5 January 2024 immediately.
All other applications are dismissed.

Reasons

Both parties attended the hearing on 15 February 2024.
[The landlord’s representative] represented the landlord. The owner of the premises, [The owner/s] also attended the hearing by teleconference.
This hearing relates to premises at [Tenancy address suppressed] (“the premises”). The premises consist of a relatively modern two-level building. The ground floor has commercial tenants. The tenants live in the upper floor.
The tenancy commenced on 15 January 2021. The terms of that tenancy agreement have been varied over time. The tenants in this application are the current tenants. General Law
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 each party must establish that what they are claiming is more likely than not.
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).
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular 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.
I explained to the parties that 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, photos, written reports and statements. 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.
The tenant claims are that; • The notice of termination of their tenancy is invalid. • The landlord has acted to terminate their tenancy without grounds. • They seek compensation for costs incurred as a result of the termination of the tenancy. • Reimbursement of the filing fee.
The landlord seeks possession of the premises having served a notice to terminate the tenancy on the tenants.
The facts are not greatly disputed by the parties and a timeline of events is set out below.
The tenancy commenced on 15 January 2021.
The landlord received a seismic assessment report from [Engineering company] relating to the premises dated 23 March 2023.The report was prepared by a Senior Structural Engineer and was reviewed by a Chartered Professional Engineer.
The FCE report states that in the opinion of the report writer, the building at [Tenancy address suppressed] (which includes the premises) is earthquake prone. The report states “.... the weakest elements being the connection of precast concrete panels to the foundations, this is due to large eccentricities in the bracing scheme, making the structure highly torsional”.” Tortional” being the twisting of an object subject to an applied torque.
The report goes onto say “Considering the current use of the building and the risks posed by this building, FCE recommend that this building be vacated at the earliest convenience as the risks in occupying this building are currently very significant.”
Despite the apparent seriousness of the matter, the owner sought further professional advice. The tenants were not advised at this time of any concerns as to the safety of the premises.
The owner engaged [Engineering company 2] engineers, to review the structural integrity of the building. The owner says that he received verbal advice in May 2023 from [Engineering company 2] that in their opinion, whilst the building was an earthquake prone building, it was not unsafe. They said that further investigation was required. Having been advised that the building was not unsafe, the owner did not inform any of the building tenants of the concerns.
The owner instructed [Engineering company 2] to prepare a detailed report on the structural integrity of the building.
The [Engineering company 2] report to the owner is dated 22 November 2023. The report states that Eqstruc has undertaken site investigations, referred to the relevant existing information including the FCE report, consent information drawings and information provided by GDM Consultants (the original structural designers of the building).
The report states that “we consider that the building is unsafe to occupy as part of the Earthquake-prone Building Act. The Dangerous and Insanitary Buildings Policy 2021(QLDC) states that an earthquake prone status alone does not mean that a building is dangerous and, thus, unsafe to be occupied. However, after consideration of the Building Consent application and the consented plans, we believe the building is also unsafe due to normal loading conditions such as applied dead and live loads. That may cause a possible shear failure....”
The report suggests that temporary propping be installed in the building to allow access to carry out investigation. The building would initially be scanned using non-invasive technology to determine if the reinforcement to the building is as shown in the building plans. That non-invasive investigation is only able to show the presence or not of the reinforcement. Further invasive investigation would then be required to determine if the bar sizes of the reinforcement (if any) and the details of any reinforcement. It is clear that the report writer considered the investigation to be a three stage process; • Propping • Non-invasive investigation • Invasive investigation
On 27 November 2023, the tenants received an email from the landlord advising them of the issues with the property. The email suggests that the tenants vacate the property temporarily and that the rent would abate. The notice records that the tenancy was not being terminated at that time.
On 30 November 2023, the tenants left the premises and lived with friends on a temporary basis. The tenants left belongings at the premises.
On 30 November 2023, [the District Council] issued an earthquake prone notice for the building. That notice was attached to the building.
On 12 December 2023, the tenants moved to boarding house accommodation which had been provided by the landlord. The tenants did not consider the boarding house accommodation suitable for their needs and left after staying there for one night. They moved into accommodation with friends.
The tenants were frustrated at what they considered to be a lack of communication and action by the landlord. By email dated 12 December 2023, they issued a 14-day breach notice, calling on the landlord to provide them with copies of the engineer’s reports and related documents.
By email dated 18 December 2023 to the tenants, the landlord confirmed that the situation with the structural integrity of the building was not clear. The landlord provided the tenants with two options. The tenants could retain the tenancy with rent abating 100% pending further engineering advice, on the basis that the premises could not be occupied until further notice was received, or they could terminate the tenancy.
By email dated 5 January 2024, the tenants advised the landlord that they had been required to shift four times since leaving the premises. The tenancy agreement was still in force and that they were returning to live at the premises. The tenants asked once again to see copies of the engineering reports.
The landlord offered to show the reports to the tenants, but only in person as opposed to providing them with copies.
The landlord informed the tenants that the proposed investigations of the property would be invasive and that they could not commence whilst the tenants were still living at the premises.
On 12 January 2024, the landlord issued a seven-day notice to terminate the tenancy on the grounds that the premises were uninhabitable in accordance with s.59(2) RTA. The notice records the engineer’s advice that the building was unsafe to occupy.
The tenants remain at the premises as of the date of the hearing.
The landlord has obtained a review of the previous engineers’ reports. That review was conducted by [Engineering company 3] engineers and architects. Their report dated 24 January 2024, confirms the previous advice to the landlord regarding the building. The report writer states that “The original construction drawings show details which have raised serious concern. The identified critical structural weakness is the concrete beam column joint supporting the concrete first floor...... Brittle failure of the beam column joint could occur in a minor seismic event and is likely to cause a catastrophic outcome.... We concur that the building is unsafe to be occupied, based on the assumption that the building was constructed in accordance with the drawings”.
Section 59 RTA provides in part that; 59 Destruction of premises (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.
Where premises are totally or partially destroyed or so seriously damaged to render them uninhabitable, the landlord may give not less than seven days’ notice to terminate the tenancy to the tenant.
The only financial remedy available under s.59 is to refund any rent paid in advance of the premises being rendered uninhabitable. Compensation would only be payable where it is established that there has been a breach of the tenancy agreement.
The District Court considered the issue of habitability in Watkin v Brazier Property Investments Ltd (2012) DCR 186. In that case, the tenant’s concern was that the chimney might collapse. The Judge noted that the uninhabitability in s.59 RTA referred to an existing state, although the Judge accepted that “there may be circumstances in which the potential for serious damage is sufficiently serious as to render the premises uninhabitable”.
The Court did not consider in that case that the risk of the chimney falling was sufficient to render the premises uninhabitable, particularly as an engineer’s report had deemed that the premises were considered safe to occupy.
The danger referred to in this matter is potential danger. I consider that in light of the engineer’s evidence of the potential for catastrophic damage, that the potential for serious damage is sufficiently serious as to render the premises uninhabitable. That view is further supported by the engineering reports which do not deem the premises safe to occupy as distinct from the reports in Watkins v Brazier Property Investments Ltd.
Was the s.59 RTA notice invalid? The tenants say that the notice is invalid as it has not been issued following advice from the QLDC or other regulatory body, that the premises are uninhabitable.
The tenants provided a statement from Carlos Luna. The statement records that Mr Luna is a Civil Engineer. The statement does not set out the extent of Mr Luna’s experience, nor the qualifications he may hold. The statement is not on the letterhead of any engineering company. In essence, the statement suggests that as the building has been in existence without issue for 12 years, it is not in a dangerous state. I do not place great weight on the statement because of the limitations referred to above. I prefer the evidence of both [Engineering company 2] and [Engineering company 3] as to the condition of the premises.
In my view, the issue of habitability is one for the Tribunal to consider. Based on the evidence of the landlord’s engineers, I consider the premises to be uninhabitable. The seven-day notice dated 12 January 2024 is valid. For the same reasons, I dismiss the tenant claim that the landlord has attempted to terminate the tenancy without grounds.
Given the findings above that the seven-day notice is valid, possession of the premises is granted to the landlord. Compensation
The tenants have commenced paying rent since they returned to the premises. The landlord has very fairly kept those payments undisbursed in a separate account. The landlord confirmed that the rent has abated 100% and that it will return the payments to tenants. The landlord is ordered to immediately return those funds to the tenants.
The tenants seek compensation for Wi-Fi costs incurred by them relating to the premises during the period where they had vacated the premises. They have provided an invoice in support for $100.68. The landlord is ordered to pay that sum to the tenants immediately.
The tenants seek compensation for the power costs incurred by them during the period where they had vacated the premises. They have provided an invoice in support of that claim for $127.30. The landlord is ordered to pay that sum to the tenants immediately.
The tenants seek compensation for lost wages, which occurred when they were required to shift premises. Whilst I retain sympathy for the tenants as to those costs, the Tribunal does not have jurisdiction to award them, and the tenant claim is dismissed.
As the tenants have not been wholly or substantially successful in this matter, I make no order with regards to the filing fee.
The landlord has applied for name suppression. The landlord has been substantially successful in this matter and suppression of the landlord’s name and details is ordered.

Tenancy Tribunal case 4774457 — Tenancy dispute

At a glance

Tenancy Tribunal case 4774457 — Tenancy dispute

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