What was Tenancy Tribunal case 4816217 about?

The tribunal order states: The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated,

How much money was awarded in case 4816217?

The reconciled net award was $1,000.00.

What type of tenancy dispute was case 4816217?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4816217?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10207250-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4816217 about?

The tribunal order states: The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated,

How much money was awarded in case 4816217?

The reconciled net award was $1,000.00.

What type of tenancy dispute was case 4816217?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4816217?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10207250-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4816217 — 14-day notice

Order

The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 11:59pm on Monday 13 May 2024.
[The landlord/s] must pay [The tenant/s] $1,000.00 immediately.

Reasons

[The landlord’s representative] attended the hearing on behalf of the landlord. [The tenant/s], the tenant, and her support person [The support person/people], also attended the hearing.
The landlord has applied for termination of the tenancy based on a threat to assault the property manager by the tenant.
The tenant has cross applied for failure to maintain, work orders, breach of Healthy Homes Standards in relation to heating, draughts and ventilation, compensation and exemplary damages. Termination based on threats to assault
The landlord provided a statement from the property manager, [The property manager/s], and called [The property manager/s] to give evidence by phone during the hearing.
The property manager said that, on 21 February 2024, during a routine inspection, the tenant became agitated, she believed due to the property manager noticing the tenant had a dog at the property, which would have been unapproved. The property manager said the tenant called her a ‘bitch’, that she explained she would not tolerate that language and would leave the property if it continued and that the tenant then calmed down. Later during the inspection, the property manager said the tenant became very aggressive and abusive. She said the tenant kept telling her to stop smirking at her. She said she felt very intimidated and apologised and said she was not aware she had been smirking. She said she tried not to look directly at the tenant but was keen to leave. As she was putting on her shoes, the property manager said she felt the tenant’s rage and her body language, that the tenant’s fists were clenched, her face was angry and she had turned towards the property manager within the small space they were in, yelling at her, “I will smash you and put your head through that door”. The property manager believed the tenant was going to punch her, as she said the tenant had just put down her child, and said they were only a metre apart. The property manager then left the house.
As the property manager got into her car, she said the tenant came out to the front step and yelled at her saying she would put a brick through her window. She said the tenant was looking around in her garden at the time, which the property manager thought meant the tenant was looking for a brick to use to throw at her car window. The property manager left the property quickly. There was discussion about the significant emotional impact of the incident on the property manager, who had to take time off work, has had health issues as a result, and has been extremely stressed and traumatised by what occurred.
[The tenant/s], the tenant, disputed the property manager’s version of what happened. She said that, during the inspection, the property manager was pointing out cobwebs, dust and dirt on items in the house and telling her to clean them. The tenant was frustrated at this, as she said she had made multiple attempts to get a number of maintenance issues at the property fixed, with little success, due to the property manager being what she perceived as difficult with her and refusing to do repairs that the property manager did not believe were ‘important’. The tenant acknowledged that at one point she called the property manager a “f’g rude bitch”, when she believed the property manager was smirking at her and saying she would not live in such conditions with her children when the tenant had to live there with her own children. The tenant emphatically denied that she made any comment to the property manager about smashing her or putting her head through the door. The tenant did acknowledge telling the property manager as she was leaving that she should put a rock through her car window. Whilst the tenant confirmed she had felt very frustrated at the property manager during the routine inspection, and that she was also dealing with a small child who had just come out of hospital, she said she was not yelling at the property manager.
Section 55(1)(c) Residential Tenancies Act (“RTA”) provides that the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that the tenant has assaulted or threatened to assault any agent of the landlord.
Section 2 Crimes Act 1961 provides the definition of assault as follows: Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose.
The evidence clearly showed a situation between the property manager and the tenant during a routine inspection that quickly escalated. The tenant acknowledged calling the property manager a “f’g rude bitch” and also acknowledged saying she should put a rock through the property manager’s car window. The tenant denied yelling at the property manager but confirmed she put down her small child who she was holding before the alleged comment about putting the property manager’s head through the door, even though she said she had done this for other reasons. It is hard to imagine the tenant making even the comments she acknowledged making to the property manager, about the property manager being a “f’g rude bitch” or threatening to throw a rock through the car window of the property manager, without her being angry and yelling at the property manager, as these are not comments that are made calmly generally. The high level of frustration described by the tenant during the routine inspection and the difficult history between the tenant and the property manager, as confirmed by both parties, as well as the escalating tension and situation with abusive language and threats to throw a rock through her car window, make it likely, in my view, that the tenant likely threatened to assault the property manager, by threatening to put her head through the door. Even threatening to throw a rock through the property manager’s car window, while the property manager was in her car, meets the definition of a threat to assault, in my view, as the tenant was threatening to apply force to the property manager whilst she was in her car. This was so when the property manager’s evidence was that she thought the tenant was going to carry out these threats and had the ability to do so, which is based on reasonable grounds, given the evidence.
As I am satisfied that the tenant has threatened to assault an agent of the landlord, I must make a termination order. Therefore, the tenancy is terminated. During the hearing, [The landlord’s representative 1] indicated he was happy to allow the tenant about a month before termination. Work orders
The tenant sought work orders for the landlord to repair the master bedroom windows, which she said do not open or close without force, to repair the holes under the kitchen cupboards, repair the hole in the deck and repair the hole in the wooden fence at the back of the property. The landlord agreed to do all this repair work at the hearing. However, given the tenancy is terminating, I do not make these work orders but note the intention of the landlord to do this work, as agreed.

Has the landlord failed to comply with their obligations?

[The tenant/s] claimed that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations 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 Residential Tenancies Act 1986.
The tenant said the landlord has failed to maintain the property in the following rooms of the property, as follows: a. In the kitchen by not repairing rat holes under the kitchen cupboards, not repairing holes and cracks in the kitchen ceiling and in the wall behind the door handle, not repairing windows that do not open properly or sorting out mould. b. In the sitting room/lounge area, by not servicing the heat pump, not repairing a hole in the wall behind the lounge door handle, not repairing small holes in the lounge ceiling, not repairing cracks around the curtains so that a fern was growing through the crack, not blocking up the fireplace which had a breeze coming through. c. In bedroom 2, the tenant’s daughter’s bedroom, by not repairing the window which did not open properly without force. d. In bedroom3 – the master bedroom, by not repairing a small hole in the ceiling and not repairing windows that did not open or fell out. e. In the hallway by not repairing a hole in the end closet and sorting out mould. f. In the toilet by not repairing a hole in the wall, cracks in the wall or the toilet seat. g. In the bathroom by not cleaning the extractor fan, repairing the cracks or sorting out the mould. h. In the wash house by not repairing a hole in the wall, cleaning a yellow ceiling. i. In bedroom 1 by not repairing small holes in the walls.
The tenant said all the unresolved repairs which are the subject of her failure to maintain claim involve issues which she had told the property manager about at a number of routine inspections, and many of which were issues present at the property before her tenancy began. When the landlord brought up the notification of maintenance issues through their online notification system and pointed out the tenant had not logged any notifications, the tenant said she had verbally told the property manager about these issues during their inspections, and that the property manager knew about them. The tenant said that the property manager did arrange for repairs for issues she believed were important but in many cases she told the tenant that the tenant was responsible for sorting them out, e.g. cleaning mould.
The landlord denied receiving any notifications of the issues raised by the tenant and pointed out not all the issues raised by the tenant were visible during routine inspections. The landlord said there would have been notes of any issues raised by the tenant on the inspection reports, if issues had been raised by the tenant. The landlord also pointed out that the tenant could have easily logged these maintenance issues on their online portal, but did not. [The landlord’s representative 1] said the landlord was more than willing to repair any issues that were properly notified to the landlord and remained willing to do so. Nor were there any emails or texts provided from the tenant to the landlord about issues she said she had raised. As they had not been told of these by the tenant, he said the landlord was unable to arrange for these repairs to date.
The landlord provided copies of a few routine inspection reports. I note in the inspection report dated 4 September 2023 comments about a work order being issued for a leak in the laundry and back yard tap. The property manager noted in that report that the heat pump needs a service and the fence in the back yard needs repair.
There is a comment by the property manager in the inspection report dated 7 June 2023 that the heat pump is in use on that date of her visit. A later report on 4 September 2023, as outlined above, noted the heat pump needed servicing. There is a comment also in that report where the property manager noted she has issued a work order to get the spouting cleaned and remove the vine and old TV aerial from the property. Also, in that inspection report of 7 June 2023, there is a photograph of a board covering a small part of the deck, which appears a similar size to the hole in the deck described by the tenant.
In the inspection report dated 21 February 2024, the date of the alleged threats to assault the property manager, the inspection report noted the tenant’s comments about having to replace the toilet seat, the pile of green waste and tree that fell in the back yard that she had to deal with and the 3 “pre-existing” holes in the toilet and kitchen that the tenant felt needed to be repaired. I note this is the first mention on any of the routine inspection reports provided of the tenant raising such issues and the property manager noting what the tenant raised.
The landlord mentioned several times pre-existing issues, such as holes in some walls or doors, which the landlord said was made by the tenant prior to this one. As this tenant had started occupying the property whilst the previous tenant was there, the landlord submitted that this tenant had assumed responsibility for the previous tenant’s damage. It is noted that this tenant had her own tenancy agreement, was not on the same tenancy agreement as the previous tenant, there was no variation to the earlier tenancy agreement that included this tenant, neither was there anything in writing from this tenant confirming that she agreed to assume responsibility for any damage caused by the previous tenant. Further, this tenant’s evidence was that there was an agreement between the previous tenant and the property manager that the previous tenant would repair her own damage and the property manager would sign off her agreement on this before the previous tenant left, which had indeed occurred. In these circumstances and given the evidence, I find that this tenant, who had her own tenancy agreement that began on 22 October 2021, had not assumed any liability for any damage caused by the previous tenant. After some discussion in the hearing, the landlord accepted this but highlighted that they had been working on that assumption at the time.
As such, I find the comments by the tenant in the 21 February 2024 inspection report about the 3 pre-existing holes, which were noted just prior to the property manager going on leave due to the incident between them that day, to be recently notified to the landlord and which the landlord has just had clarified at the hearing was their responsibility to repair in the circumstances. Therefore, I do not consider the claim about these 3 pre-existing holes in walls, which though not specified in the report, I take to be holes behind the door handles in the lounge and bathroom and the hole in the hallway end closet, to have been effectively notified as such until the hearing and dismiss those claims.
The landlord provided a list of about 16 repair jobs issued during the tenancy, most of which had been completed. The tenant acknowledged these jobs completed and said she had also raised these issues, but the landlord had not followed through on the other issues she had raised.
Of the issues raised by the tenant alleging the landlord had failed to maintain, I find it likely that the following issues were raised and not dealt with by the landlord in a timely manner, and so the landlord failed to repair and maintain these issues: a. Servicing of the heat pump. This was noted as an issue in the inspection report of 4 September 2023, but no evidence was provided by the landlord that it had been serviced. The tenant said it had not yet been serviced. I consider this to be the landlord’s responsibility as it is a maintenance issue. b. Repairing the back yard fence. Inspection report photographs show this damaged fence, and it is noted as requiring repair by the property manager. The tenant’s photograph provided indicated it has not yet been repaired. There was no evidence provided by the landlord that the fence had been repaired. c. Repairing a hole in the back deck. Inspection report photographs clearly show a board over part of the back deck, and of a similar size as described by the tenant at the hearing, as the board she nailed over the hole in the deck to prevent injuries. The tenant said this still had not been repaired. The landlord did not provide evidence that this hole in the deck had been repaired. d. Repairing the hole in the wash house wall. This was in a photograph in one of the inspection reports of this hole and, though somewhat out of view as it was at the side of a large fridge, was noticeable and would have been visible to the landlord.
I have dealt with the 3 pre-existing holes in the walls above and dismissed those claims. There is no mention in the routine inspection reports of issues raised by the tenant about cracks in the walls and small holes in the ceilings needing repair. The landlord said they were not notified of these issues by the tenant.
The inspection reports noted that under the kitchen sink area was checked and there were no visible issues. The tenant had said she could not keep her kitchen items in the kitchen sink because of rats coming in through these holes. However, the inspection report photographs show non-food items kept in the kitchen cupboard under the sink. Whilst the tenant provided photographs of the holes under the kitchen cupboard, this is an area which could easily not be noticed in an inspection as being obvious, unless attention was drawn to it. Similarly, the landlord said there was a curtain across the hallway cupboard which also prevented them from seeing a hole in the end closet that needed repair, as indicated by the tenant. At the hearing, the landlord said they were more than willing to repair any issues of which they are notified and have done so. For the landlord to be liable for failing to maintain, the tenant must prove that they notified the landlord of the issue in question and the landlord then failed to repair or maintain the issue. I find there is insufficient evidence to prove that the tenant notified the landlord of these issues needing repair, as well as the other issues raised by the tenant, except for those I have found in paragraph 25 above. The tenant’s evidence is uncorroborated with additional supporting evidence in this respect, and so I dismiss the tenant’s claim in relation to the landlord failing to maintain all issues, apart from those found and outlined in paragraph 25 above.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. Here, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
I find in this situation that the landlord did act intentionally, as they allowed the situation to continue, in not having the heat pump serviced, or the back fence or hole in the back deck or hole in the wash house wall repaired. The heat pump servicing and back fence repair had been noted in the inspection report of 4 September 2023 but were still not completed at the date of hearing in April 2024, several months later.
The effect on the tenant, particularly not having the heat pump serviced so the tenant could utilise the heat pump effectively, as she had complained of a brown liquid coming out of the heat pump when they used it, so they stopped using it, meant that the tenant did not access her main heating source for this period. The tenant also gave evidence of the fear created for her by the large gap/hole in the back fence, when her drug addict neighbour often pushed through this hole in the fence and ran onto her property escaping from police. There are mentions of these concerns of the tenant in inspection reports also. The tenant further said that the hole in the deck had led to at least 2 people being injured, before she nailed a board over the hole.
It is in the public interest that landlords are held to account for repairs which have been noted, or are noticeable, but not acted upon for several months.
The landlord provided a job sheet of 16 jobs that had been raised in relation to this tenancy on multiple issues, including leaks, rats in the cupboard, door handles, spouting, down pipes, fixing a hole in the bathroom walls, installing a rangehood in the kitchen and dealing with mould. I note that this landlord was largely proactive in organising and completing the majority of repairs at the property in this tenancy. I consider this factor as significant in determining any award of exemplary damages.
The maximum level of exemplary damages is $7,200. In this case I consider an order of less than one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. However, I note this landlord has been largely proactive in organising and completing numerous repairs at the property during the tenancy and see this as a significant mitigating factor. I therefore order exemplary damages of $1,000.00. Healthy Homes Standards
[The tenant/s] claimed that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating, ventilation and draught stopping standards.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024. Heating
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The tenant said that the heat pump provided would comply with the HHS if it had been serviced. However, the tenant said that one time they used the heat pump and a brown liquid came out of it. After that, she said they did not want to use the heat pump. There was dispute between the parties as to who was responsible for servicing the heat pump, with both saying it was the responsibility of the other. However, the property manager had noted in an inspection report that the heat pump required servicing, which has been dealt with in the failure to maintain claim above. The tenant said further she did not wish to use the [brand] fireplace provided as after they used it one time, it smoked up the house. The issue here was servicing of the heat pump, as opposed to there not being a compliant heat source at the property. There was insufficient evidence provided as to whether the heat pump could actually be used or not, but I note the property manager’s comment in the inspection report in June 2023 that the heat pump was in use during her visit, noting later in September 2023 that it required a service. This matter has been dealt with in the tenant’s failure to maintain claim above. Ventilation
Rental homes must have openable windows in the living room, dining room, kitchen and bedrooms. Kitchens and bathrooms must have extractor fans or any acceptable continuous mechanical ventilation system.
The tenant said further the landlord did not comply with the ventilation HHS standard as they did not provide an exhaust in the kitchen and the windows did not open properly. The landlord said they installed a rangehood in the kitchen during the tenancy and the tenant had not notified them of any issues with the windows. Draughts
Landlords must ensure the property does not have unreasonable gaps or holes in walls, ceilings, windows, floors and doors which cause noticeable draughts. All unused open fireplaces must be closed off or their chimneys must be blocked to prevent draughts.
The tenant said that the house was full of draughts and was very cold. However, the tenant did not provide much evidence of the size of any holes or gaps that let in air from the outside, apart from saying there were some gaps in the windows and that there was a gap under the front door. There was no additional supporting evidence of these provided. I find there was insufficient evidence provided by the tenant on this HHS standard breach.
The landlord provided confirmation with a HHS report that they had passed all HHS standards in relation to this property. They said a copy of this report was emailed to the tenant on 8 March 2024.
The tenant did not provide any HHS report or other additional supporting evidence to contradict the landlord’s evidence that they complied with the HHS for heating, ventilation or draught stopping. As such, I dismiss this claim. Compensation
The tenant claimed compensation for having to have tree branches cut down from a tree which she said was dangerous. Some tree branches had fallen much earlier and had been cleared by the landlord. However, the tenant said she was worried other branches of this tree would also fall and she wanted action taken in this regard and the branches of the tree cut down. As she said the landlord had not arranged for this, she hired a chainsaw and mower and had others help to cut down the branches, burn them and clear up the garden. She initially claimed $544.80, which she amended at the hearing to $540.00. The tenant said this was for two people @ $22.50/hour for 6 hours a day, for two days.
The landlord said there had been no request made by the tenant for this job to cut down tree branches whereas they had responded to an earlier request to cut up and remove tree branches that had fallen.
The tenant provided photographs of the tree being cut but did not provide any confirmation of the amount of her claim, by way of quote, invoice or witness statement of those involved in doing the job. Further, there was no evidence that this job had been notified by the tenant to the landlord. As such, I find there is insufficient evidence to prove this claim and so dismiss this claim. Filing fee
The landlord and tenant have both been partly successful in their respective claims. As such, I do not reimburse the filing fee to either party. Suppression
Both parties requested suppression. As both have been partly successful in their respective claims, I order that the landlord’s and the tenant’s names, identifying details and the tenancy address are not to be published. See section 95A(1) RTA.

Tenancy Tribunal case 4816217 — 14-day notice

Tenancy Tribunal case 4816217 — 14-day notice

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions