What was Tenancy Tribunal case 4825497 about?

The tribunal order states: All claims are dismissed.

How much money was awarded in case 4825497?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4825497?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4825497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736612-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4825497 about?

The tribunal order states: All claims are dismissed.

How much money was awarded in case 4825497?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4825497?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4825497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736612-Tribunal_Order_Redacted.pdf.

150 Champion Street, Cannons Creek, Porirua 5024 Tenancy Tribunal Case 4825497 — Mould & damp

Order

All claims are dismissed.
The Tribunal orders suppression of all party identifying details, other than the address of the premise.

Reasons

[The tenant/s] has been living at this property since 2009. In October 2023 the property was sold, and a new owner initially instructed [previous property manager] to manage the tenancies. 1 Then in January 2024 [The property manager/s] took over the property management. [The property manager/s] was represented at the hearing by [Property manager 1] and [Property manager 2]. [The tenant/s]clams in this application relate to the period [The property manager/s] was managing the tenancy and accordingly are against them as landlord. 1 This is one unit in a cluster of nine
[The tenant/s] original claims to the Tribunal were with respect to issues with oral agreements from the previous landlord not being upheld by the new owner. 2 Since the claim was filed a number of mediations have been held between the parties and significant progress on the situation made. Importantly the original issue with the lawns has been resolved.
However, additional issues have arisen. In particular, on 10 July a notice to terminate the tenancy pursuant to section 51(2)(f) of the Residential Tenancies Act 1986 (RTA) (the termination notice) was issued to end the tenancy on 9 October.
[The tenant/s] clarified his claims at the hearing on 2 August to be as follows: i. That the termination notice is retaliatory and/or unlawful and as such he seeks it be overturned. ii. That his quiet enjoyment of the property has been breached since the new ownership began.
Given the alteration of the claims, additional time was provided to both parties to file evidence in support of their oral submissions made at the hearing. This decision will not, for reasons of brevity reference all evidence filed, but the parties can be assured it has all been carefully considered.
The questions therefore for the Tribunal are: a. Was the termination notice lawful? b. Was the termination notice retaliatory? c. If yes, should it be overturned? d. Has [The tenant/s] quiet enjoyment of the property been breached?
Before considering these claims, I note that an applicant, [The tenant/s] here, has the burden of proof placed on him to prove his claims to the required standard (there is a caveat to that with respect to the retaliatory notice which I will discuss below). This means he cannot just allege something; he must adduce evidence to persuade me that his version of events is the correct one. The standard is the civil standard of the “balance of probabilities” or what is “more likely than not”.

Was the termination notice lawful?

[The tenant/s] contends that the termination notice is not lawful because the extent of the work intended to be undertaken is not required and even if it was it could be undertaken with him in situ. 2 Filed in March 2024
Pursuant to section 60AA of the RTA a landlord must not give a notice to terminate the tenancy, knowing they are not entitled to do so. This section was inserted into the RTA by Parliament in February 2021 3 in an effort to provide tenants with increased security of tenure and to curb the practice of landlords ending tenancies because they did not like the tenants or ending them without reason.
Section 51 sets out the reasons a landlord may terminate a periodic tenancy. It directs that the reason must be stated clearly so that a tenant knows why their tenancy is ending, and that a justified reason exists. By setting a high award of exemplary damages for breaching this section, Parliament has signalled that there should be a significant consequence for landlords who do so.
Other Tribunal decisions have held that landlords who issue notice to terminate a tenancy must provide the Tribunal with some evidence to substantiate the reason given in the notice. It will not generally be enough to discharge the burden of proof required (that it is more probable than not) to provide only a copy of the written notice and oral assertions that the reason is genuine. There is always supporting documentation available and as such it should be provided.
The right of termination asserted here is based in s51(2)(f) RTA: (f) extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;
[The tenant/s] submits that the scope of the repairs is not as extensive as the landlord has contracted for. He says there is not much work to be done and in doing so it would be reasonably practicable for him to remain in residence whilst they are done around him. This is because he was told by the trades who assessed the work, that it was relatively minor. He also points out that the neighbouring property that had more extensive mould issues than his was remediated with the tenants in situ. He has provided photos to substantiate this.
He also says he was never told the landlord would be changing the number of bedrooms (i.e. adding on renovations to the remedial work) until the termination notice was given. 3 by section 40 of the Residential Tenancies Amendment Act 2020 (2020 No 59)
Firstly, on the point of the neighbouring property, the photos [The tenant/s] provided do show more extensive mould than I understand is in his property. The work was undoubtably significant, and the tenants could not use some spaces while it was undertaken. I cannot however compare the two properties. Without a registered trade comparing the two it is impossible for me to assess the relative situations. I therefore cannot give this evidence significant weight.
[Property manager 1] submits that when the owner took on these properties 4 they were aware of the substantial work required to bring them up to healthy and compliant standards. They have been working through this since they took over management.
For this home it was initially understood that some relatively minor remedial work could be undertaken to get the home up to Healthy Homes Standards (HHS), and some has been done. However, as they investigated, the advice from their tradespeople was that the work required is more significant than initially envisaged. The trades have estimated that the work required will take approximately four weeks and the property will need to be vacant for it to occur.
The home is currently not HHS compliant and the HHS report 5 indicates considerable issues which will all need to be rectified no later than 1 July 2025 which is the statutory deadline.
When the owner was advised of the extent of the work required, he decided to include renovations within the scope of work to turn the property from a 3- bedroomed home to a 4-bedroomed home. This had ostensibly always been his intention, but he was awaiting the property being vacant to do so. [Property manager 1] says that the owner organised the trade who’s quote has been accepted and as soon as the owner advised them, they told [The tenant/s].
Given the extent of the work, the landlord submits it is not practicable for [The tenant/s] and his flatmate to continue to reside in the home whilst it is undertaken. Given the state of the property, it is expected that the timeframe may well extend beyond the base 3-4 weeks. It was for this reason they issued the termination notice. They empathise with [The tenant/s], however their instructions from the owner are clear. [Property manager 1] says they will support [The tenant/s] to find a new home as much as possible.
Under section 51(2)(f) of the Act it is necessary to show that the alterations, refurbishment, repairs, or redevelopment of the premises, whichever is applicable, are “extensive”. This question must be considered in the context of whether it is reasonably practicable for the tenant to remain in occupation while the work is undertaken. Works that require the tenant to move out are, by their nature, likely to be extensive. At the same time, an issue that requires the 4 There are nine properties in the complex 5 Dated 6 May 2024 tenant to move out temporarily for a short period, for example for one day for plumbing work to be undertaken in a kitchen or bathroom, may not be extensive. Each case will have to be determined on its particular facts and in light of the nature, extent, and effect of the intended work.
Having assessed the evidence provided I can see that [The property manager/s] was seeking quotes for remedial work. At some point the owner has obtained their own quote and within that have asked the trade to also quote for the alteration to the room layout.
The owner was of course entitled to obtain a quote for whatever work they wished. It is clear that remedial work is essential if the property is to remain tenanted. If an owner wishes to undertake renovations as part of that process, they are entitled to do so.
The work that the owner has had quoted [Building company] and has accepted is: - Prep, frame, gib, skirting and scotia the pass through between kitchen and bedroom allowing for a 4th bedroom. - Remove and dispose of the damaged plasterboard surrounding the chimney area due to a previous leak. Install H3 45x20mm Battens and re-gib the affected areas with 10mm gib. - Replace damaged architraves in kitchen windows. - Repair damaged window in upstairs lounge (wont close) - Plaster newly installed gib. - Additional work required (ceiling, plastering and painting of the upstairs lounge and new bedroom. Terms: - Any additional unaccounted/unforeseen work will be additional. - Due to the nature and extent of the work, all belongings will need to be removed. Access required, 3-4 weeks
[Building company]’s quote is less extensive than the remedial work quote obtained by ([Property manager’s handyman]), as follows: Remediate front window in kitchen and repair that wall. Replace ceilings that need to be replaced, treat mold in walls and replace the mouldy carpet in 6 rooms. Smells damp and mouldy, leak into kitchen window needs to be fixed, window either replaced or repaired. have allowed for hydrapanel linings on top of new gib around the bathtub. I can get a quote for plaster and paint if you choose to proceed. There was no mould visible in room with toilet, have not allowed for any work in there. Kitchen window does not seem to be beyond repair due to water damaged, if leak has been fixed, can sand back and repaint Opening sash in lounge window will likely need to be replace, cannot currently access to properly assess
Despite the lesser work, [Building company] requires 3-4 weeks. [Tradesperson’s] quote doesn’t give a time frame. I am satisfied that the landlord is aware of the remedial work that must be done to ensure the home is compliant with the HHS and RTA. The addition of the work converting the room only increases that work.
Ceilings, windows and walls need to be replaced. All the work is internal, and the quote specifically requires a vacant property. Mould is pervasive, damaging and dangerous, usually its extent is not known until invasive work is undertaken. Given the photos I have been provided, it appears likely the damage will be more extensive than initially quoted for. For these reasons, I am satisfied that the work that is intended to be done is “extensive”.
I am also satisfied that it “would not be reasonably practicable” for [The tenant/s] to remain in occupation. The majority of the rooms will be being worked on, including extensive work in the kitchen and bathroom; essential daily-use rooms.
[The tenant/s] made comprehensive and thorough submissions regarding the timeline of the quote acquisition and the scope of the works required. Whilst I accept his perception of events what remains is that the owner has accepted a quote to remediate and renovate the property that requires the property to be vacant. I am entitled to and do accept the trades’ advice on this. I am also satisfied upon seeing the photos that the remediation work is likely to be extensive on this property as it is in clear need of significant repair.
Further, section 51(2)(f) RTA does not say the landlord cannot terminate a tenancy if work can be undertaken while the tenant moves out temporarily, and then moves back in. Rather, the provision enables the landlord to terminate if the tenant cannot remain in occupation while extensive work is undertaken. Therefore, although the tenant could potentially find alternative accommodation while the work is carried out, this does not prohibit the landlord from serving notice to terminate the tenancy to allow the renovations to proceed.
Accordingly, I do not find it established in evidence that the termination notice was issued unlawfully and this claim must be dismissed.

Was the notice retaliatory?

[The tenant/s] second claim with respect to the termination notice is that it is retaliatory. He feels that the landlord must have been motivated to end the tenancy because he was asserting his rights. He had issued proceedings 6 in the Tribunal, was attempting to have an oral agreement regarding the lawns upheld, was challenging the rent increase; quite clearly standing up for his rights. He feels he is being treated differently to other tenants because he was trying to stand up for himself.
The termination notice was advised at the 5 th mediation session and issued formally later that day. The works orders 7 for quotes for remediation and renovation were submitted after [The tenant/s] had filed his claim with the Tribunal but before the first mediation. 8
[Property manager 1] submits that there is no retaliation here. She says she told the owner very little of the mediations with [The tenant/s] and he was never considered a difficult tenant. She is clear that it was always the owner’s intention to turn this home into a 4-bedroomed property when it was vacant and given the extent of the work required it makes sense to do the work together.
[Property manager 1] says they resolved the other issues with [The tenant/s] amicably and they have a good relationship now. She does not want to see him lose his home, but it is not possible for him to remain while the work is undertaken.
For the termination notice to be declared retaliatory by the Tribunal, [The tenant/s] must prove that in terminating the tenancy, the landlord was motivated wholly or partly by him exercising a right under the tenancy agreement or any Act, or by any complaint she has made against the landlord. 9
The onus is initially on [The tenant/s] to satisfy the Tribunal that it is more likely than not that the landlord was so motivated, in whole or in part. The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Accordingly, the link must be direct. Once he has established a link, the onus then shifts to the landlord to prove that the notice was not retaliatory.
I am satisfied that the first two requirements of s54 of the RTA have been met here, specifically: i. The termination notice was a valid notice that complies with section 51 RTA as discussed above. It is in writing, identifies the premises to which it relates, specifies the date by which the tenant must vacate, and gives the reasons for the termination. 6 Filed 1 March 2024 7 The first on 13 April 8 15 April 9 See section 54(1) RTA ii. [The tenant/s] has made his claim within the required time (within 28 days of service of the notice). The termination notice was issued on 10 July and [The tenant/s] raised it with the Tribunal on 17 July, therefore within time.
I am also satisfied that [The tenant/s] has established that he was exercising his rights prior to the termination notice being served. This is because he had filed his claims with the Tribunal, attended several mediations and the matters were still continuing at the time the notice was served. In particular, his dispute regarding the rent increase (without completion of the maintenance) was live and contentious.
Further, it is well established in precedent that where there has been a short time between a tenant exercising their rights and the landlord giving notice, there is an inference that the landlord has at least been partly motivated by the tenant exercising their rights. Therefore, given the close time proximity discussed above, I am entitled to infer that the landlord 10 was at least partly motivated.
Having determined a motivational link, the evidential onus then shifts to the landlord to establish that they were not so motivated. This is a rebuttable presumption however does need to be proven to the required standard with evidence.
I am satisfied that the landlord knew or ought to have known that there were issues with mould from the beginning (the owner from purchase, 11 [The property manager/s] from taking over management 12 ). Despite this, neither quotes for remediation nor HHS assessment were sought until April. By this time [The tenant/s] had filed his application and the first mediation had been held.
There is no evidence that significant steps had been taken to address the remediation prior to [The tenant/s] filing his initial application. This may well have been because the other properties were being addressed first but what has occurred is that steps to remediate and renovate this property were not taken until after [The tenant/s] sought relief from the Tribunal.
However, that is not the end of the matter as the situation needs to be considered as a whole. The District Court has discussed the intent of section 54 and is clear that although a tenant may be exercising their rights, a landlord is also entitled to exercise theirs: The purpose behind empowering the tribunal to declare a termination notice retaliatory and of no effect is to prevent landlords from discriminating against 10 Term used inclusively of the property manager and owner 11 They had valuer’s assess the property prior to purchase 12 They had the Berryman’s inspection report of 18.1.24 those who assert their rights as tenants or make complaints by ending their tenancy. The provision is designed to protect tenants but not from the legitimate decision any landlord may make to sell their property or no longer operate it as a rental property. 13
The Tribunal has noted in the application of that case that it is also relevant for noting that evidence that the landlord has dealt with or attempted to deal with complaints is supportive of a finding that a notice is not intended to be retaliatory. 14
Although the Carver v Kiesanowski case relates to an owner wishing to sell their property, I consider I am bound by it in these circumstances. The owner is legally required to ensure they are meeting their maintenance and compliance obligations pursuant to section 45 of the RTA. The trades’ invoices establish that in order to do so the property will need to be vacant for approximately four weeks.
Further case law from the District Court is the case of Kerr v Woodman 15 where Judge Ongley stated that a notice given for genuine reasons would not be considered retaliatory.
It would be nonsensical and unjust 16 for the Tribunal to prevent compliance work by overturning a termination notice issued for the purpose of achieving lawful compliance. The landlord here has genuine reason to undertake extensive remediation work, i.e., it is lawfully required. Accordingly, I must dismiss this claim.
I do not make this decision lightly. I acknowledge [The tenant/s] strong desire to continue living in the property that has been his home for a long time. I empathise with him and his flatmate. However, the law is clear that a landlord is entitled to renovate their asset and is required to undertake maintenance and ensure compliance with the law. The Tribunal cannot prevent attempts to comply with the very law it is tasked to uphold. Was [The tenant/s] quiet enjoyment breached?
[The tenant/s] says that ever since the new ownership he has had a significant number of visits by trades however very little of the required work has been undertaken. Specifically, he notes: a. In February a valuer attended the home however no notice had been given. 13 Carver v Kiesanowski [2021] NZDC 3939, paragraph 43 14 X v X [2022] NZTT 4330900 15 DC Porirua, MA 244/88, 03 November 1988, 16 Pursuant to section 85 of the RTA b. On one occasion just after a mediation an oven was dumped on his doorway impeding his access. c. A large number of contractors have attended to compile quotes, estimated at 10 visits in five months. d. Two contractors came on July 25th and cleaned the outside of the home without providing prior notice. e. In April/May some trades attended and got on the roof, no prior notice having been given.
He feels that the length of time these maintenance issues have been live has been extensive and the work could have begun earlier. The owner was told about the issues before purchase given [The tenant/s] himself advised the valuer.
There were then issues with the rent increase because he was initially told it would increase when the maintenance work was complete. However, they attempted to increase it despite the work not having been done. This has now been resolved.
He also says [The property manager/s] refer to the RTA in an intimidatory and threatening way and has treated him differently to the other tenants. He says he has had many communications from the landlord which have been difficult to deal with. An example of this is that he has been told he must move his belongings from the underfloor space so a ground moisture barrier can be installed. This is despite him already being told his tenancy is ending soon.
Finally, as above he does not feel that the termination is fair and considers the landlord is just trying to get him to leave.
[Property manager 1] explains that they do refer to the RTA to demonstrate to tenants and their owners that they are solely driven by the law. It is meant to provide surety to all parties.
She agrees that there have been a lot of trade attendances, but says they have not been excessive, just what is needed throughout this process. They are juggling a number of properties that need a lot of work and trying to be as considerate as possible. The law and discussion
Section 38(1) RTA is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, where the landlord’s rights (such as to obtain maintenance quotes) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
In summary, whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the situation, and the length and degree of intrusion.
Also of note is that the definition of premises in s48 of the RTA (which states a landlord’s rights of entry) does not include land or facilities. Therefore, entry onto the land, but not the interior of the premises, might not be a breach of s48. However, in some circumstances, entry onto the land could be a breach of quiet enjoyment under s38 RTA.
Having carefully considered all of the evidence submitted, I am not satisfied that it has been established that the landlord has breached section 38 of the RTA. [The tenant/s] and his flatmate have undoubtably been inconvenienced, however not unreasonably so.
I do not consider [The property manager/s] reference to the RTA intimidating as I accept their explanation. It is useful for all parties to be aware of the law that is relevant in each situation. I also accept the delivery of the oven was a mistake by a contractor.
I accept that the misunderstanding with the rent increase was not intentional and as soon as it was raised, the matter was rectified. There have however been several instances when [The tenant/s] has been issued notices which have been generalised and not taking into account his particular circumstances, this was one of them. Another was the request to remove his belongings from under the house to do the moisture barrier. This is work that could have occurred after he vacated.
It is accepted that a number of trades have attended the property which has impinged on [The tenant/s] and his flatmate’s quiet enjoyment. The evidence does not however establish that the visits were excessive. Considerable work needs to be undertaken and investigations were needed to establish the extent.
In summary the landlord has made mistakes in their communications, such as with the rent increase. However, when [The tenant/s] has raised these, they have worked to resolve them. I appreciate that this has been a time for [The tenant/s] of change and high-level engagement after a relatively settled tenancy. However, the evidence has not established that the landlord’s actions met the relatively high threshold of a breach of quiet enjoyment.
Accordingly, this claim must be dismissed.

Should suppression orders be made?

Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion whilst weighing up the parties’ interests and the public interest.
I do not consider [The tenant/s] should be penalised by having his name published for filing his claims with the Tribunal. His initial claims were successful as they were settled at mediation. Further he had legitimate claims for investigation by the Tribunal.
Accordingly, it is appropriate that all party identifying details be suppressed from the published decision. I do not suppress the tenancy address as I consider it in the public interest that the public be aware that major works are to be undertaken on this property prior to its reletting.

Tenancy Tribunal case 4825497 — Mould & damp at 150 Champion Street, Cannons Creek, Porirua 5024

At a glance

Tenancy Tribunal case 4825497 — Mould & damp at 150 Champion Street, Cannons Creek, Porirua 5024

At a glance

Claims & awards

Order

Reasons

Was the termination notice lawful?

Was the notice retaliatory?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the termination notice lawful?

Was the notice retaliatory?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions