What was Tenancy Tribunal case 4823337 about?

The tribunal order states: By the mutual agreement of the parties, the last day of this tenancy will be

How much money was awarded in case 4823337?

The reconciled net award was $1,300.00.

What type of tenancy dispute was case 4823337?

The primary dispute was Leaks. Related themes: Healthy homes, Property damage.

Where can I read the official tribunal order for case 4823337?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10321685-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4823337 about?

The tribunal order states: By the mutual agreement of the parties, the last day of this tenancy will be

How much money was awarded in case 4823337?

The reconciled net award was $1,300.00.

What type of tenancy dispute was case 4823337?

The primary dispute was Leaks. Related themes: Healthy homes, Property damage.

Where can I read the official tribunal order for case 4823337?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10321685-Tribunal_Order_Redacted.pdf.

22 Arapiki Road, Stoke, Nelson 7011 Tenancy Tribunal Case 4823337 — Leaks

Order

By the mutual agreement of the parties, the last day of this tenancy will be Sunday 30 June 2024, with possession returning to the landlord after that, unless ended prior by the tenant providing the landlord with no less than two days written notice to terminate.
[The landlord/s] must pay [The tenant/s] $1,300.00 immediately, being compensation for the landlord’s failure to maintain.
A stay on Order 3. is in place until a routine inspection is completed, if not already conducted since the hearing. The stay lapses regardless on 7 June 2024.
No other orders are made.

Reasons

Both parties attended the hearing. The agent confirmed it had the authority to represent all respondents.
The tenant application sought compensation for the landlord’s failure to maintain. It further claimed a failure to supply a healthy home statement and that a notice to quit was retaliatory.
The landlord application sought orders pertaining to the tenant’s failure to remedy, nor allow access for plumber or insulation installer to the premises.
The hearing was adjourned open for the following purposes: a. The landlord arranging for a plumber to attend the kitchen leak and inspect the ensuite shower to assess water flow and temperature. If substandard, no repair strategy is required. b. The landlord conducting a routine inspection with no major issues identified. At that time, the landlord may video the performance of the ensuite shower to be provided if the shower performance is disputed.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background
The tenancy commenced 30 June 2023 shortly after the ending of the prior tenancy.
The premises (at the rear) is accessed by the shared driveway. There is a house in front of this premises. Both are owned by the same owner but the front property is not managed by this agency. The tenant has cause to interact with the owner regarding issues between the two premises.
Based on the information provided, before and during this tenancy the owners were in direct contact with the tenant regarding the initial offer to her of the tenancy, as well as some tenancy issues. Such communication appears to have reduced after the initial bedding down of the tenancy with the property manager appropriately engaged. There appears to have been a reengagement, instigated by the tenant, directly with the owners by the tenant in late 2023, seemingly out of a frustration at a lack of maintenance.
The property manager had been engaged and active prior to this tenancy. Given staff turnover, the agent involved at the commencement of the tenancy is no longer employed. The tenant advice that the advertising and initial screening for this tenancy was conducted by the owners appeared to be a surprise to the current agents. Tenant application
There were two areas raised by the tenant regarding landlord’s failure to maintain. The first was in relation to the driveway and the second pertained to the shower in the ensuite bathroom.
The tenant raised a failure of the landlord to provide a healthy home standards report but she acknowledged at the hearing that the information was provided in the tenancy agreement.
The landlord has served the tenant with a notice to terminate. The tenant claimed this was retaliatory.
It is well settled that, the landlord’s obligation under s 45 RTA 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) RTA. 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. Driveway
Based on the communication provided I accept the condition of the driveway 1 was a concern to the tenant from the commencement of this tenancy and raised with the owner. The agent confirmed that there had been no maintenance of the driveway during this tenancy, bar one spot repair previously that appears to have subsequently failed.
The driveway itself is of unsealed with minimal metal over the well-established vehicle tracks. There is a significant drop from the sealed roadside onto the driveway and numerous potholes are apparent in the photos provided. The 1 A premises includes any land and appurtenances such as a shared accessway here (see s 2 Residential Tenancies Act 1986). tenant commented that the condition of the driveway continued to deteriorate during the course of the tenancy.
The tenant was upset that her car required replacement of the two front tyres and wheel alignment after some six months of this tenancy. It was her contention that the damage to the side walls, shown in a series of photographs, was such that her tyres needed replacing and that the cause of the damage was the poor condition of the driveway. The landlord challenged the evidential support of the claim.
Regardless of the causation of the tyre damage, I consider it reasonable to conclude the condition of the driveway will have contributed in some way. I do not find sufficient evidence to order the direct cost to the tenant compensated. I do have concerns regarding the failure of the landlord, after adequate notification from the tenant, to address what is clearly evidenced in the photos. While the landlord submitted a driver could navigate the hazards, I struggle to concur considering the access would be used during hours of darkness. The tenant claimed to request some gravel so she could make some repairs. If so, this was never provided. A base layer of GAP 40 gravel or such would have likely provided reasonable surface without requiring the owner to incur greater costs through sealing.
I consider the tenant has been impacted by failure to maintain the driveway. The condition has been clearly and consistently raised by her to the landlords. I consider the condition of the driveway is evidenced by the tenant to be below that might be reasonably expected of an urban property such as this.
Given the condition, the timely reporting of it, and the failure to maintain I believe grounds for compensation have been established by the tenant. Consideration of compensation includes the invoiced cost for her car tyres and wheel alignment/balancing as well as the difficulty in ease of use.
The tenant is a mother with two young children and it is not unreasonable to expect the driveway to have been in daily use. Successful navigation of obvious damage would have been more difficult during periods of darkness as well as for any visitors to the premises.
I find compensation for the failure to maintain is appropriate. I have adopted a flat rate over the tenancy but recognise ongoing deterioration will have occurred. I have calculated compensation through to the end of the tenancy as no work order was sought.
Therefore, I award $780.00, being $15.00 per week over 52 weeks. Shower
Early in the tenancy, concerns regarding the water pressure were raised by the tenant with the owners. They replied that they had lived in the property previously and investigated possible resolution but told her it was too expensive. It appears the premises is not served by mains pressure supply. They commented that the previous tenants had not raised an issue and therefore nothing would be done about it.
At the hearing, the tenant clarified that the primary problem was the inability to use the ensuite shower. Managing water pressure drop due to multiple concurrent uses was accepted and in place. She described it is working at best as a dribble. She stated that she could not use the shower and had to use the other shower in the main/family bathroom.
Given a plumber was to attend a kitchen issue, the adjourning order made provision for an independent, expert assessment. Such assessment was delayed and not as complete as I had hoped but on 2 May 2024 the plumber emailed the landlord, advising: The existing flexi shower hose was split, we have replaced the shower flexi and shower head suitable for low pressure but the pressure is still considerably lower than the other shower. I believe the issues go back to the original installation and can look in to this further if you require us to.
I consider the email above to validate the issues raised by the tenant. I find the low pressure was raised by the tenant and not addressed. The direct impact was the loss of amenity, being the ensuite shower, with an indirect impact requiring management of concurrent water use.
I find compensation for the loss of amenity is appropriate and I have calculated that at $10.00 per week. Again, using 52 weeks makes the sum $520.00.
Total compensation to the tenant of $1,320.00 is awarded. This effectively represents just over 4% “refund” of the rent paid during the tenancy. Notice to terminate
It is evidenced by correspondence between the owners and the agent that consideration of selling the property was underway in late 2023/early 2024. At the owner’s request an agent was engaged around 19 January 2024. The tenant was advised on 25 January 2024 that the agent would be attending with the property manager during the next routine inspection to be conducted.
The inspecting agent debriefed the owners. The property manager recounted that part of that debrief was a concern regarding the internal condition of the premises as observed. This appears to pertain to presentment rather than any underlying damage. However, that discussion concluded with the owners instructing the property manager to issue a notice to terminate that the premises were to be sold. This notice was issued on 13 February 2024 but it was incorrectly drafted on the basis that this was a periodic tenancy. It was left to the tenant to advise the property manager this was a fixed term tenancy until 30 June 2024. It appears that the tenancy agreement on file was an unsigned draft and that the management system was incorrectly showing this is a periodic tenancy. The tenant had the correct tenancy agreement.
Any notice to terminate might be expected to be upsetting to the recipient. In this case, such impact was amplified by procedural flaws by the landlord. I do not consider all flaws were corrected in the subsequent corrections and no valid notice to terminate exists.
There followed a discussion between the landlord and the tenant regarding the ending of this tenancy. The tenant has also been working towards the tenancy end date of 30 June 2024 and after some discussion it was mutually agreed by the parties that the tenancy end date would remain as 30 June 2024, but with an early exit provision for the tenant’s benefit. The tenant is free to exercise that provision any time prior to 30 June 2024 when the tenancy will end by mutual agreement.
The second aspect regarding the termination was a claim from the tenant that the notice to terminate was retaliatory and contravened section 54 RTA. She is correct that the notice to terminate was served on her one day after her 14-day notice to remedy had been issued to the landlord. That is a coincidence that justifies consideration of owner motivation. However, as discussed at the hearing, the issues formalised in the 14-day notice to remedy were not new and had been consistently raised by the tenant during the tenancy (hence the compensation amount ordered). Further, it is clearly evidenced that the owners had turned their mind to a possible sale of the premises well before the 14-day notice to remedy.
Given the above, I do not consider the notice to terminate was retaliatory and that claim is dismissed. Landlord’s application
The landlord was concerned regarding the condition of the premises as observed during a routine inspection 1 February 2024. They issued a notice to remedy the next day. Due to illness in the tenant’s household the reassessment was deferred until 22 March 2024. The landlord believed the tenant had failed to remedy and submitted a counterclaim that same day seeking termination of the tenancy. At the hearing the landlord concurred termination did not seem appropriate at this time, subject to resolution of two pressing issues.
The first issue for the landlord has been the continued denial of access for a plumber to attend a notified issue in the kitchen. There was no adequate reason provided by the tenant to have denied access. Given the issue involves a potential leak it is essential it is inspected and repaired immediately, if necessary. I believe the tenant understands the need and her liability if subsequent damage has arisen due to any belligerence from her regarding access.
A second issue for the landlord is concern regarding the interior presentment of the premises. It is timely and a requirement for the landlord to reinspect, after providing the tenant with suitable notice. As explained to the tenant, routine inspections are important to ensure there are no issues, current or looming, that may damage the premises or any chattels within. Again, it is expected the parties will ensure a routine inspection is completed quickly.
A further issue regarding access was for the attendance by an insulation installer to ensure the insulation is fully compliant. The landlord has a concern regarding one area. The tenant is not concerned regarding any minor additions to insulation that may be required and expressed her preference that the task is completed after this tenancy ends. The task has no underlying maintenance or preventive function but will ensure the maximum efficiency of insulation. As this would be primarily for the benefit of the tenant, it was agreed to address this task at the end of the tenancy, per the tenant’s request. The tenant is aware that in doing so there is no recourse later for any claimed failure of the landlord to maintain insulation. Summary
I believe the tenant has established grounds for compensation due to the landlord’s failure to maintain and a loss of amenity.
Equally, the landlord was justified in making its own application to the Tribunal. I note the considered advice from the landlord to the tenant to use the Tribunal as the appropriate forum to resolve these matters.
Since the hearing, it appears the routine inspection has not yet occurred. I do not apportion blame on any particular party (although each appears to blame the other) but I have put a stay on the tenant compensation as ordered to ensure the tenant is further motivated to ensure access. The landlord is assumed motivated enough given its obligation to the owners. Suppression
Both parties requested suppression in their application. I consider both parties have experienced substantial success with their applications and that any failing in their role as respondent is not sufficient to usurp their right to suppression where a party has substantially successful.
Given that I order all names suppressed in this order. I leave the address public as I consider there may be reasonable public interest for future tenants in applications such as this regarding any failure to maintain.

Tenancy Tribunal case 4823337 — Leaks at 22 Arapiki Road, Stoke, Nelson 7011

At a glance

Tenancy Tribunal case 4823337 — Leaks at 22 Arapiki Road, Stoke, Nelson 7011

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