Published tribunal order
Tenancy Tribunal case 4807099 — Mould & damp at 25 Sunnyhills Avenue, Glenview, Hamilton 3206
Decided 27 Jun 2024 · Published 27 Jun 2024 · Application 4807099
- Mould & damp
- State of repair
- Cleanliness
- Harassment
- Leaks
Party names are redacted in the official published order.
Order
- No claim has been made against the bond. The Bond Centre is to pay the bond of $403.00 ([Bond number suppressed]) to [The tenant/s] immediately.
- The landlord must pay the tenant $270.44 as set out in the table below:
Reasons
- [The tenant/s] appeared for the tenant and was supported by [support person]. [The landlord’s representative] appeared for the landlord with [Counsel].
- The tenancy commenced on 13 November 2022, and ended on 31 December 2023. On 13 February 2023, the tenant filed a claim seeking refund of the balance of the bond ($403.00). The tenant also claims that the landlord failed to maintain the garage and a pool at the property in a reasonable state of repair, that a 90- day notice to terminate the tenancy was invalid, that a rent increase effective 06 December 2023 was retaliatory and invalid, and that the landlord had interfered with the tenant’s reasonable peace, comfort, and privacy.
- The onus of proving these claims rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Has the landlord failed to maintain the property in a reasonable state of repair.
- Dealing first with the claim that the landlord has failed to maintain the garage in a reasonable state of repair, the first issue concerns the door to the garage. The tenant states that prior to the tenancy, the door was electrically operated, but that the mechanism had ceased working, and the previous occupants, the landlords, had operated the door manually. The tenant states that the roller wheels, which run along tracks, had become worn and had ceased to “roll,” resulting in the door becoming difficult to operate and sometimes coming off its tracks. The tenant states that they raised with the landlord at an inspection just after the start of the tenancy. They state that sometime later, they were told to go to a local hardware store and get replacements themselves. The tenant states that the did see it as their responsibility, did not do so, and that despite verbally raising the matter again, it remained outstanding until the end of the tenancy.
- The landlord acknowledged that the rollers on the door had to be regularly replaced. The landlord accepts that the matter was raised during the inspection. The landlord has produced an instruction for a contractor to attend the property and repair the door. The landlord stated they believed the rollers had been replaced. The invoice produced dated 22 December 2022, shows that on 13 December 2022 the contractor visited the property and “reattached TILT door “. However, the invoice goes on to state” Door is in overall rough working condition but is operable.” In any event, the landlord states that the matter was not raised again until the end of tenancy inspection on 31 December 2023, and had believed the matter to be remedied.
- The tenant stated that the contractor had simply straightened the tracks, which had made no appreciable difference, and should have replaced the rollers.
- The next part of the claim concerns a leak in the garage. The tenant claims that each time it rained a large puddle would form. The ongoing nature of the leak resulted in personal belongings stored in the shed being affected by dampness and mould. The tenant states that despite raising it at the inspection in November 2022, and thereafter “multiple” times, they were not aware that it had been addressed.
- The landlord states that they were aware of a leak in a neighbour’s water pipe running along a shared driveway at the rear of the garage, which was causing some dampness on the back of the garage. The landlord accepts that the tenant had raised the issue and they had been to the property to inspect the garage and noted some dampness along the side wall but denied being advised of any pools of water forming in the garage. The water pipe is not on the landlord’s property. The landlord stated that the neighbours had taken a while to address the matter and that they had been to the council twice trying to speed repairs, but that they appeared hesitant to intervene. The landlord states the water pipe was repaired around early December 2023.
- The third claim concerns the pool at the property. The pool is a small kidney shaped fibreglass pool which is dug in and surrounded by regular sized paving stones. The tenant states that during the tenancy the paving around the pool sunk resulting in a significant trip hazard and rendering the pool unsafe to use. After a significant storm December 2022 / Jan 2023, the fence at one end of the pool to fell away casing that end of the pool to sink creating larger gaps in the paving. Tenant states they raised it with the landlord immediately as without the fence it posed a health and safety risk to their children and the neighbour’s children. The tenant states that the matter was not addressed, and the pool remained out of bounds from Jan 2023. The tenant states they advised the landlord that they were not using the pool. The tenant states the landlord visited and inspected the damage and advised that they would either have it repaired or remove it. The tenant states that around November 2023, contractors had inspected the pool, but nothing occurred as a result. The tenant produced a photograph of the pool taken around November 2023 which shows an area of pavers next to the pool at the end farthest from the viewer near the fence that had sunken, becoming uneven with large gaps. Another area nearest the viewer also shows sunken and uneven pavers at the edge of the pool.
- The landlord states that the pavers around the pool had always had gaps which had not affected their use, or in their view created a health and safety hazard. The landlord, however, accepts that it was “not conducive to children running around.” The landlord accepted that when the storm blew the fence down that this may have resulted in further settling but did not view this as a concern. Due to the high demand on contractors following the storm, there had been a delay in repairing the fence, which was repaired on 11 April 2023. The landlord stated they had also attempted to get contractors to relay the pavers in the worst affected area, but that contractors had declined due to the smallness of the job. The landlord denies that the tenant advised that they were not using the pool and states they did not do so until around November 2023. Law
- Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.
- The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a period which is reasonable in the circumstances. As to what that period 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.
- Failing to comply with section 45(1)(b) is a breach for which, if loss has occurred, compensatory damages may be awarded. Decision
- To determine whether the landlord has responded appropriately, the Tribunal must in a position to make a proper objective assessment as to the nature and extent of the defect. There are no photographs produced of the garage showing the door or the leak. There are no text messages, emails, or other written correspondence between the parties concerning the matter. There is insufficient evidence to establish that the landlord has failed to meet their obligations concerning the garage door and the leak.
- Regarding the pool, having viewed the photographs showing the condition of the of the pavers, I accept the tenant’s submission that, in one particular area near the fence, they have not been maintained in a reasonable state of repair. The landlord have themselves conceded that they were not in a state conducive to children running around the pool, which, provided they are properly supervised, children will be inclined to do. While I accept the landlord’s submission that the condition of the pavers would not have rendered the pool unusable, I find that, notwithstanding their unsuccessful attempt engage a contractor remedy the matter, it nevertheless diminished the tenant’s enjoyment of the pool, resulting in loss of amenity.
- In my view this loss of amnesty occurred over the warmer months of the year when the tenant would have likely wanted to utilise the pool area. For the period from the beginning November to the tenancy in December 2023. I award the tenant compensation of $100.00 per month for loss of amenity ($ 200.00). Retaliatory and invalid notice to terminate.
- On 30 November 2023, at around 1.08 pm the landlord served the tenant a notice to terminate the tenancy on 28 February 2023. The notice was issued on the grounds that the landlord intended within 90 days of the expiry of the tenancy to place the property on the market. See section 56(2)(a) of the Act. On 04 December 2023, the tenant gave 28 days’ notice to vacate on 31 December 2023.
- The tenant argues that the landlord’s notice had been retaliatory, having followed soon after a dispute about the oven, and they could find no evidence that the property had been marketed or sold since the end of the tenancy. The tenant states they were advised by neighbours that the week they moved out, another family moved in. The tenant believes that the new occupants are tenants. The tenant has produced document from an online property data base compiled from council records which shows that on 28 January 2024, the landlords were the still registered owners.
- The landlord states that the occupants are the new owners of the property. The the occupants had viewed the property during the tenancy, a sale and purchase agreement was entered verbally, and they moved in shortly after the tenants moved out. The landlord states that settlement was deferred until 01 May 2024, whereafter the purchasers became the new owners. The landlord has produced a copy of the updated title which confirms the new owners and the date of settlement.
- The tenant questions whether, given the 90 days from 31 December 2023, the 01 May 2024, settlement was out of time. For the purposes of section 56(2)(a) the 90-day notice issued by the landlord was effective 28 February 2024. Thereafter, the landlord had a further 90 days, until to 28 May 2024, to offer the property for sale.
- The landlord denies that the notice had been retaliatory stating with the increase in interest rates, the mortgage payments had doubled, and increase in insurance, and general rates, that the property as an investment was no longer financially viable. Law
- Under section 51(2)(a) of the Act, a landlord may give 90 days’ notice to terminate the tenancy on the grounds that they intend offering the property for sale or other disposition within 90 days of the expiry date. Any notice must be in writing, identify the property, specify the end date of the tenancy, the grounds for termination, and be issued by the landlord or an agent. The notice must be served on the tenant at an address for service.
- The jurisdiction to declare a notice to terminate retaliatory under section 54(1) of the Act requires firstly that the application be filed within 28 working days of the notice being served. See Realty House Whakatane v Eschbank [2020] NZDC 1608. Decision
- The termination notice is valid and has been properly served. The property was offered, and in fact, sold within the required time period. The claim that the notice was invalid is dismissed. The claim that the notice was retaliatory was filed on 13 February 2024, which is forty-eight working days after the notice was given. The claim that the notice was retaliatory is out of time and declined. Breach right to quiet enjoyment
- The tenant states that shortly before the termination notice was given, the relationship between the parties soured and remained “hostile” until the end of the tenancy. The catalyst for the break down appears to be a dispute over who was liable for a broken glass panel in the oven door and a notice of a rent increase, which the tenant felt had not been issued in the correct form nor due justified due to outstanding maintenance issues.
- There is no issue that a notice to increase the rent was invalid. It was not in the correct form, nor did it provide the full notice period of 60 days. See section 24 of the Act. The notice was amended and reissued but did not take effect until the after the end of the tenancy. The tenant made a payment of $50.00 under invalid notice, and the landlord agrees that this amount should be refunded.
- The tenant states they received repeated unsolicited hostile calls demanding payment for the oven door and the landlord had brought a non-approved person to an inspection.
- The tenant states that on one occasion the landlord called, but that due to the hostility displayed, by the landlord they terminated the call. The tenant states the landlord then called back, stating, in a threatening manner “it is not in your best interests to hang up,” followed soon afterward by the termination notice.
- The landlord states that that shortly after advice that the oven door had been damaged, they inquired with the manufacturer whether the oven was still covered by warranty. The landlord states they had been advised that due to the nature of the damage that it was not. The landlord then stated that they called on 16 November 2023, to advise them of their liability and asked how they would be paying. Shortly afterward the landlord conducted an inspection on 18 November 2023, where they state the tenant advised that they intended to dispute liability. The tenant states that the landlord raised the matter first and was accusatory and dismissive.
- The damage had occurred while the tenant was cleaning the stove for the end of tenancy inspection. The tenant states that following advice from Tenancy Services on or about 20 November 2023, they considered that they may have been careless and accepted that any money owed could come out of the bond. On or about the 30 November 2023, the landlord states they called the tenant to confirm the position.
- The tenant has produced a timeline leading up to and including the call on 30 November 2023. It shows that on 30 November 2023 at 9.43am the tenant missed a call from the landlord. At 10.04 am the tenant called back, but there was no answer. The tenant immediately called again and spoke with the landlord before hanging up.
- The tenant states that at the inspection on 08 November 2023, the landlord had arrived with a family member who had a six-month-old baby. The tenant stated that the family member had not acted as an agent during the tenancy, and they were surprised. The tenant stated that they advised the landlord that they had forgotten about the inspection and asked to reschedule to 18 November 2023, which the landlord agreed to. On 18 November 2023, the landlord again arrived with the family member and baby. The family member asked the tenant for permission to enter, which was granted by the tenant. However, the tenant states they were not comfortable by the request but in the circumstances felt obliged to agree under the circumstances. Law
- A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See s 38(2) of the Act.
- In the case of Smith v Floris, Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for breach of this type.
- Each case will be determined on the facts proven and require an objective assessment as to whether the nuisance or intrusion impacting the quality of the tenancy is over and above that which a tenant could be reasonably expected to endure in the circumstances. Decision
- It must be anticipated that parties, will from time to time, disagree about liability under their agreement or the provisions of the Act. The parties may attempt to resolve matters themselves and, if unsuccessful, resort to the Tribunal. These attempts can sometimes be emotive. The issue is whether, in the course of these attempts at resolution, the conduct of the landlord has reached a threshold were it can be objectively assessed as interfering with the reasonable peace, comfort, and privacy of the tenant.
- In this case the onus is on the tenant to establish that this was so. This case can be described as a “tenant said versus landlord said” situation. The tenant claims the landlord’s conduct amounted to an interference. The landlord denies the claim. In this instance, I do not find one party more convincing than the other. There is little in the way of documentary evidence, such as texts or emails, to corroborate the claim. I note that 30 November 2023, it was the tenant who in fact called the landlord, and the call was not therefore, unsolicited as claimed. There is insufficient evidence to establish that the landlord, or the family member acted in a degrading, demeaning, harassing manner or in any other way that significantly impacted on the tenant’s quiet enjoyment. I am not satisfied that there has been an interference with the tenant’s reasonable expectation of peace, comfort, and privacy. The claim is dismissed.
- During the hearing, there was a suggestion that the landlord’s failure to provide a reference may be a breach or interference. There is no obligation under the agreement, and I can find no provisions under the Act, which require a landlord to provide the tenant with a reference. Costs
- As the tenant has been partly successful with their claim, I am ordering reimbursement of the filing fee. Name suppression
- Both parties seek name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- Objectively assessed, I am satisfied that both parties can be described as substantially successful, in either their prosecution or defence of the claims made. On that basis, the Tribunal orders suppression of the names of the landlord, the tenant, the support person, and the representative.