What was Tenancy Tribunal case 4834477 about?

The tribunal order states: No suppression order applies to the publication of this order.

How much money was awarded in case 4834477?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4834477?

The primary dispute was 14-day notice. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4834477?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11009263-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4834477 about?

The tribunal order states: No suppression order applies to the publication of this order.

How much money was awarded in case 4834477?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4834477?

The primary dispute was 14-day notice. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4834477?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11009263-Tenancy_Tribunal_Order.pdf.

20 Victoria Road, New Plymouth, New Plymouth 4310 Tenancy Tribunal Case 4834477 — 14-day notice

Order

No suppression order applies to the publication of this order.
BY CONSENT - The landlord’s electrician will attend the property to assess the position and fix any lights that are loose in the lounge or flickering on the lower level by 19 November 2024.
BY CONSENT - The landlord will install a safety rail down the side of the ramp to make it safe by 19 November 2024.
BY CONSENT - The landlord will replace the retaining wall and the fence above it by 28 February 2025.
The Tribunal declares that the clauses in the tenancy agreement stating “Downstairs shower not for use” and “Downstairs does not have a room useable as a bedroom” are enforceable clauses. The downstairs room is not a habitable space.
The Tribunal declares that the clause relating to requiring professional carpet cleaning where the tenant has a pet is unenforceable.
The tenant’s claim for compensation arising as a result of his inability to use the downstairs shower and use of the downstairs room is dismissed.
The tenant’s claims for a work order for mechanical ventilation and for the downstairs room to have its window fixed so that it opens is dismissed.
The landlord must provide to the tenant an updated Healthy Homes Compliance Statement to add that ceiling insulation was installed in part of the property in 2024 and specify where. This must be done by 26 November 2024.
The tenant’s claim for compensation for breach of quiet enjoyment is dismissed.

Reasons

Both parties attended the hearing. Both parties had a support person. The tenant’s support person first gave evidence as a witness and then became a support person.
The Tribunal must hear an application brought by the tenant in relation to: a. Work orders in relation to: i. the electrics; ii. a punga retaining wall and fence; and iii. a barrier on a ramp. b. A declaration as to whether three clauses in his tenancy agreement are enforceable (these relate to the use of the shower and the use of the downstairs room and carpet cleaning connected to pets). c. Work orders to fix a window in a downstairs room and to install mechanical ventilation in a downstairs shower room and compensation for those issues. d. An order that the landlord amend the Healthy Homes Compliance Statement in relation to the shower, insulation and the draught stopping standard. e. Compensation for breach of quiet enjoyment. The civil burden of proof
As explained at the hearing 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.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
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 to the tenancy
The tenancy is a fixed term tenancy which began on 2 February 2024 and continues in the fixed term until 2 February 2025. Work orders for the electrics, barrier, fence and retaining wall
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
The tenant says that there are issues with the electrics with lights being loose in the lounge and flickering at the bottom level of the premises. The tenant seeks a work order to remedy this, and the landlord agrees. The parties agree that an electrician will attend the property to assess the position and fix any lights that are loose in the lounge or flickering on the lower level by 19 November 2024.
The tenant says that there is a high ramp which is used for access and it has no barrier and seeks a work order. The landlord agrees to install a safety rail down the side of the ramp to make it safe by 19 November 2024.
The tenant says that the fence above a punga retaining wall needs to be replaced. He also says that the retaining punga wall needs replacing. The landlord agrees to replace the retaining wall and the fence above it by 28 February 2025.
I have therefore made three work orders relating to the above work by consent. Are the clauses relating to the use of the shower and the downstairs room enforceable?
The Tribunal must consider the enforceability of two clauses contained within the tenancy agreement. The first clause relates to the use of a shower and the second clause relates to the use of the downstairs room.
So far as relevant the terms in the tenancy agreement says as follows: “Downstairs shower not for use.” “Downstairs does not have a room useable as a bedroom”
The tenant says that the inclusion of these clauses breach his quiet enjoyment and mean that the landlord is seeking to avoid her obligations around maintenance. He says they are unlawful.
The tenant says that he responded to an advert that advertised the home for rent as a three-bedroom house. The property is split level and is older in its construction. Two of the bedrooms are upstairs and the third bedroom would be the downstairs room referred to in the above clause.
The tenant says that upon visiting the property with the landlord to see whether or not the property was suitable for his needs the parties noticed that the window in the downstairs room could not be opened. It is a louvre window which has been nailed shut. There was then a discussion between the tenant and the landlord about the downstairs room not being suitable as a bedroom. The tenant provided a number of photographs of the room including the window.
The tenant says he said he thought that fixing the window would be easy and that once this was fixed he could use the room as a bedroom. The tenant and his witness say that the room is dry and is not damp.
The parties then went upstairs and signed the tenancy agreement. The tenant says that he felt that he had to sign the agreement because the rental market is so competitive. The tenant says he is presently using the room as a games room. He says he has put a bed in it because he does not have another couch.
The landlord says that the room is not as a bedroom she says it does not meet current requirements. She says that the window is low. She says that the room is “sub earth” surrounded by earth on two sides and it has a concrete base so cannot meet moisture requirements. She says it was probably fine when it was built in terms of the standards then, but now it would be an unhappy environment to sleep in - it would be damp and mouldy and cold. She says that the two vents that are in a wall are actually up against soil. She says that the door has a soft material concertina door and this would not be a good seal.
The landlord says that she had discussions with architects and builders about possibly renovating this area before the tenancy but they had not found it feasible to do a renovation of downstairs – rather, she says, they found that the whole property would be best developed together. She says it hasn't been used as a bedroom in the past 30 plus years. The previous long-term tenants used it as storage.
She says that when she listed her advert as a three bedroom property this was a mistake. She says that the tenant thought that the property was perfect (when he viewed it) and that he was still interested even though he knew that the property would now be a 2-bedroom house. She says that they discussed the clauses that would be added and that the tenant was fine with this. She says that the tenant was not coerced into signing the tenancy agreement as he says he was, and that he was very happy with having the house.
In relation to the shower the tenant’s evidence is that the parties looked at the shower room and it was discussed how the landlord would look at having a vent put in there as there was none. The tenant says that although he signed the tenancy agreement saying that the downstairs shower should not be used he thought this meant just until the vent was put in place. When he raised this later in the tenancy, he says the landlord threatened to lock the room. The tenant says it is a workable connected shower, the landlord tested it on her inspection the day before the hearing.
The shower room itself is small and only contains the shower and a small floorspace beside it. There is a separate bathroom upstairs.
The landlord says that the advertisement was for a three-bedroom, 1 bathroom property. She says that it was made clear to the tenant that he could not use the shower. She says that is not appropriate for use because the floor is not appropriate and the concrete wall, she says, means that a fan cannot be put in. She questions whether or not she should have instead locked the door from the start to not make the room accessible to the tenant. The landlord says it is not true that she said she was going to put a vent in. She refers instead to a conversation that she says the parties had about her architect taking the view that it wasn't feasible to do a renovation because it was too major.
I was provided with a detailed set of emails and on 24 January 2024 there was an exchange between the parties prior to the tenant coming to view the property. In this email the landlord referred to the downstairs being run down and she says, “if the downstairs is not a full time bedroom then it's all good”. She goes on to refer to there being a WC downstairs. The tenant replied the same day saying “The downstairs rooms are not an issue”.
Once the tenancy agreement was signed at the viewing on 25 January 2024 the parties continued to communicate by e-mail. The parties provided copies of numerous emails prior to the tenancy starting.
Prior to the tenancy starting on 29 January 2024 at 2.59pm the tenant says to the landlord: “I know you were not aware of it being unopenable when you advertised the house as a three bedroom home however it would be a massive disadvantage to me if I can't use that bedroom to have guests stay in or my children sleepover or a third room. I think it would be best to simply replace it and then there is no issue.”
In summary, the emails that then follow show the landlord offering to cancel the agreement. Express reference is made to the conversation the parties had about the room not being suitable. The tenant sets out that he really wanted the house and so wanted to proceed saying he did not need the room immediately. The landlord replies raising a concern that she thinks he will not be happy due to the downstairs room. The tenant replies: “We don’t need to make an issue over the window. I am sure I can work around the bottom bedroom easily. Let's just carry on with renting the property as agreed”.
The landlord then set out: “Another condition on the agreement was that the shower is not to be used. Of course we can cancel the agreement if you are unhappy with the conditions and I am agreeing to release you from it”.
The tenant replied: “I am not concerned about the shower as there is one upstairs. I am happy with the agreement and do not wish to be released from it. As I have said we have a contract that needs to be honoured. The window was a simple request and I did not expect you would consider cancelling our agreement because of my request. I feel we can move forward without any issues and we continue the agreement as it is... we have made our decision and signed the agreement so please can we put this issue behind us and carry on with me renting the property”.
The landlord then replied: “I made it clear from the start, the house does come with conditions and the low rent reflects this. As you now accept those conditions I am sure we can move on positively”.
The tenant replied expressing his relief and how the place meant so much to him. Analysis
There is a difference of opinion about what was discussed at the viewing itself and there is no full copy of the advertisement but I find that there is no doubt that the parties agreed that the downstairs room was not suitable as a bedroom.
I note that the early email sent by the landlord which refers to the downstairs did not refer to a shower but did refer to the WC, this indicates that it was not her intent to include the shower as part of the in the tenancy and supports her version of events. Further, the email sent very shortly after the tenancy agreement was signed sets out that: “Another condition on the agreement was that the shower is not to be used”. The fact that the tenant did not question this also supports the landlord’s version of events regarding the shower.
Ultimately, and in any event however, the best evidence of what was actually agreed is found within the express terms of the tenancy agreement itself. This was signed very shortly after the discussions about the use of the property had taken place. Clauses expressly exclude the use of the shower and set out that the downstairs room is not useable as a bedroom.
I find that the clause in the tenancy agreement in relation to the shower is not significantly different from the situation where a landlord, might exclude a shower in a bathroom generally (perhaps over a bath) that might not be working at the start of the tenancy from use. It is not unknown, and it can be appropriate for landlords to advise tenants that certain features of a property may not form part of the agreement. By way of examples, a spa bath may remain perfectly reasonable as a bath generally, but the jets may be unfixable; an older style combined light and fan may no longer have a working fan but may otherwise be fully functioning as a light; an otherwise reasonable kitchen sink may have an old food disposal unit which no longer works.
Of course, those landlords who have not thought ahead about such issues may have difficulties proving that such items were actually excluded from the tenancy if it is not recorded in a tenancy agreement. Therefore, at the start of a tenancy it is wise for a landlord to clarify any such items in the tenancy agreement.
A landlord does need to be careful, and each case will be fact sensitive, because some exclusions might amount to a breach of the RTA: For example, excluding the tenant’s ability to use the kitchen sink would mean that the house did not meet minimum standards for fitness, excluding a heat pump that is otherwise required to meet Healthy Homes Standards is another example.
Another similar situation encountered by the Tribunal is where a landlord excludes an area of the property from the tenancy altogether. More commonly this is a garage, but it might also be a room or cupboard within the house, perhaps reserved for the landlord’s long term storage and often, but not always, locked.
If an area is excluded or a specific is amenity excluded and its exclusion does not amount to a breach of the landlord’s obligations in the RTA, then I find that the clause is enforceable as a term of the contract between the parties.
There is no provision in the RTA that demands that a landlord must have two bathrooms or a separate shower. No part of the RTA prevents a landlord from excluding part of the premises or would prevent a landlord from excluding a shower (where another bathroom exists).
Overall, here I find that the landlord has chosen to exclude the shower by using express words in the tenancy agreement rather than locking the door. A legal barrier has been created rather than a physical barrier. The legal barrier is clear.
I find the clause in relation to the shower is enforceable because the shower has been excluded from the tenancy altogether from the outset and I find that the exclusion itself does not breach the RTA.
The clause relating to the bedroom requires separate consideration.
The Housing Improvement Regulations 1947 (HIR 1947) provide that windows in habitable rooms must be able to open and admit air. There is no dispute that the window does not open, and this means that it was clearly not a habitable space at the time of the viewing - it remains this way.
It is not disputed that the advertisement made an offer to rent a three-bedroom home. The landlord changed this at the viewing.
I find that when the tenant visited the property the landlord was entitled to vary her offer made in the advertisement. It is not a breach of the RTA to offer and enter a contract to rent out a two bedrooms house rather than three. The landlord’s earlier offer changed into an offer for a two-bedroom house before it was accepted. That such changes are permitted before an offer is accepted are the basics of contact law.
This change to the offer seemingly was prompted on the discovery by the parties that the downstairs room was not in fact habitable 1 because the window could not open (Regulation 11(3), HIR 1947). I find that the landlord inserted the clause relating to the use of the downstairs room for this reason. I find that the intention behind the inclusion of the clause was to make it clear that the agreement was that the downstairs space was not a habitable room.
I find that the tenant then accepted the landlord’s offer to rent a two-bedroom home.
I consider that the tenant’s email dated 29 January 2024 supports the tenant having full knowledge of the agreement. I find that it was an attempt to push back on the agreement and change what had been agreed. 1 Habitable room means any room which is used or intended to be used, or, in the opinion of the local authority, is capable of being used, as a living room, dining room, sitting room, or bedroom; and includes a kitchen having a floor area of 80 square feet or more, but does not include a room constructed and used as a garage – HIR 1947
In stating that the downstairs room was not useable as a bedroom in the tenancy agreement I find that the landlord was simply stating a fact that is correct. Namely, that the downstairs room is not useable as a bedroom, because it is a non-habitable space. The landlord is entitled to protect herself from the tenant later stating that the non-habitable room is to be treated as, or should be considered to be a habitable space/bedroom. What the tenant then decides to do with that room once it is rented is up to the tenant.
I therefore find that the room is not a habitable space and the clause states this as a matter of fact. The tenant cannot turn the space into a bedroom just by demanding that must be one.
Even if I am wrong in the above analysis, I find that the tenant was fully aware of the two clauses he was agreeing to at the start of the tenancy and would permit the clauses in any event.
While section 11 RTA places limits on agreements that are inconsistent with any of the provisions of the RTA, or that purports to exclude, modify, or restrict the operation of any such provision I find that in this situation, if I am wrong and these clauses fall within the ambit of section 11, I find that they should be permitted to have effect pursuant to section 11(1)(b) RTA. This is because in these specific circumstances I am satisfied that the tenant was able to specifically and expressly consider the position before he agreed the agreement. I cannot accept the submission that the tenant felt coerced into signing. A competitive rental market does not amount to coercion. It was up to him whether he entered into the agreement as offered to him. He had discussions with the landlord about it and then proceeded to sign a tenancy agreement.
Further as well as the agreement being expressly and clearly set out in the tenancy agreement, following further discussion, the landlord also offered to cancel the agreement prior to the tenancy starting if he was unhappy with the terms. The tenant’s replies were abundantly clear – he wanted to continue with the agreement. I have no doubt that the tenant was aware of the effect of the terms he was signing, and he made it clear to the landlord that he was very much wanting to proceed despite the clauses that were in place.
There are decisions of the District Court that indicate that if a tenant knew the tenancy agreement would include certain restrictions and accepted the tenancy, then such clauses may be enforceable. The District Court in Marino v Wellington City Council DC Wellington CIV-2013- 085-660, 23 September 2013 permitted tenants to waive the right to reasonable peace, comfort and privacy by entering into a tenancy agreement knowing that there was construction noise next door. In Wellington City Council v McMillan DC Wellington MA12-13-14/04, 5 September 2003 the court upheld terms that limit the rights of tenants under s11(1)(b) where the parties are fully informed of and agree to the terms of the tenancy agreement.
Holland J in Anguetil v North Canterbury Nassella Tussock Board HC Christchurch AP93/89, 30 October 1989 rejected the tenant’s argument that s 11(3) prevented the tenant from agreeing to an increase in rent in a manner contrary to s24(3) of the Act: Is common sense intended to be excluded by the Act? Can a landlord and tenant simply not verbally agree about an increase in rental as is so often the case? I cannot accept that when it enacted this Act the legislature had in contemplation that it would provide licence to a tenant to resile from a consensual contractual obligation and instead shelter behind the technical provisions of the Act. It seems to me that the whole focus of the Act is to protect tenants against the wiles of avaricious and unscrupulous landlords....
Following Anguetil, the Tribunal in Schmid v Murray TT 181/91, 6 June 1991 said: If a landlord and a tenant who, being in possession of all of the relevant facts and capable of exercising their judgement rationally, decide expressly or impliedly to agree to the landlord breaching one of his/her obligations under the Act, I do not consider that the tenant can later assert that in terms of section 11(3) such a waiver is of no effect. Quite apart from that offending common sense and fairness, it is contrary to fundamental contractual principles of estoppel and I do not believe that the legislature intended this legislation to depart from such a basic principle as that. Having given informed consent to the landlord’s breach of the tenant’s right to quiet enjoyment, the tenant could not “shelter behind” s11(3) of the Act.
I find that these decisions all support upholding the clauses which the tenant agreed to in the tenancy agreement. Is the clause relating to carpet cleaning in conjunction with a pet enforceable?
There is a clause in the tenancy agreement that sets out that if the tenant has a pet they are to pay for professional carpet cleaning. The landlord admitted that she added this clause after the tenant signed the agreement but before she signed it.
A party cannot unilaterally alter a contract. This clause is therefore unenforceable.
Further, the Tenants obligation is to leave the property in a reasonably clean and tidy state and free from rubbish (see s40(1)(e)(iii) RTA). The obligation to clean carpets in a certain way if there are pets is not usually enforceable if the carpets are reasonably clean and tidy, because it is a greater obligation for a tenant than what is provided for in the RTA. Work order and compensation - mechanical ventilation for shower and fix the downstairs room window so that it opens
I have found that the shower is excluded from the tenancy so the request for a work order for mechanical ventilation cannot succeed. There is no basis upon which to make this order. This claim is dismissed.
I have found that the downstairs room is not a habitable room. There is no basis upon which the landlord must undertake this work. This claim is dismissed.
Given my findings above regarding the enforceability of the clauses relating to the shower and the downstairs room I dismiss the tenant’s application for compensation arising from his lack of ability to use the shower and use of the downstairs room. Does the landlord need to provide an updated Healthy Homes Compliance statement?
The Healthy Homes Standards (HHS) apply to all new private tenancies that commence from 1 July 2021. It therefore applies to this tenancy.
Under 13A, RTA: (1A) The landlord must include in the tenancy agreement a statement, made and signed by the landlord, that provides the following information to the tenant (subject to subsections (1B) and (1C)): (a) whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises: (b) details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises: ...
It also sets out that: (1CA) The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
The tenant says he did not receive the required Healthy Homes Information at the start of the tenancy. The remedy in his application was for the landlord to provide this.
The information that landlords must include for HHS is outlined in regulations 34-39 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS 2019).
It is not disputed that the tenant did not receive the required information at the start of the tenancy. However, after filing this application, a Compliance Statement containing that information has since been received. The tenant’s remedy, that he required the required compliance information, was therefore fulfilled prior to the hearing.
The tenant however now says that some of the information provided in the Compliance Statement provided is incorrect. He says that he wants the correct information recorded in the Compliance Statement. The landlord agreed that such a claim could be heard today despite the change in the tenant’s application. The tenant says the information in the Compliance Statement is false or misleading because: i. It refers to the exclusion of the shower (as set out above). ii. Insulation information is incomplete; and iii. The information about the draught stopping standard is not correct. Shower
I have referred to the exclusion of the shower above and have found that the shower is excluded. This part of the tenant’s application therefore fails. Insulation
HHS 2019 sets out at regulation 35 the date that the insulation was installed must be provided for each “ceiling of a domestic living space in the premises that is insulated”.
The tenant says that there was insulation installed in 2024 above part of the home. Therefore, the date in the compliance statement for the installation of the insulation which says “unknown” is wrong and the statement made is false and misleading. The landlord agrees that some insulation was installed in 2024.
I accept that the information provided with regard to this aspect of the insulation is incomplete and is therefore misleading. I am satisfied that by first not providing, and then providing incomplete information about insulation the landlord has breached section 13A, RTA. Providing a false or misleading statement is an unlawful act (s13A(1F)(b)).
I am satisfied that the landlord should provide an updated Healthy Homes Compliance Statement to add that ceiling insulation was installed in 2024 and where. I have ordered that the landlord should do this by 26 November 2024. Draughts
The tenant also says that the information contained in the Compliance Statement in relation to the draught stopping standard is false because there are draughts and holes/gaps in the property. One of the requirements under the HHS, is that the premises be free from draughts (regulation 26): 26 Gaps and holes that allow draughts (1) The premises must be free from gaps between, and holes in, building elements that— (a) are not intentional parts of the construction of the premises (such as drainage and ventilation openings); and (b) allow draughts into or out of the premises; and (c) are unreasonable. (2) In determining whether a gap or hole is unreasonable for the purposes of sub- clause (1)(c), the following matters may be taken into account: (a) the size and location of the gap or hole: (b) the extent of the draught that is allowed throughthe gap or hole: (c) if there is more than 1 gap or hole at the premises, the extent of the total draught that is allowed through those gaps and holes: (d) the likely impact that a draught through the gap or hole will have on heat loss from the premises: (e) any other relevant matters, subject to subclause (3). (3) In determining whether a gap or hole is unreasonable for the purposes of sub- clause (1)(c), the age and condition of the premises or tenancy building must not be taken into account.
The draught stopping standard is a difficult Healthy Homes standard to assess because, unlike the heating and insulation standards which have prescribed and measurable minimum standards, the test for draught stopping recognises that there will inevitably be some gaps in windows and doors, and simply prescribes that the property should free from “unreasonable gaps”.
The tenant says there is a draughty bathroom window. The tenant says there is a draught coming from the basement stairwell door. He says that there are gaps in the shed door and gaps in the shed windows. He says that there are gaps in a cupboard downstairs and ducting from an old drier in the washhouse. The tenant had to fold this over and it is not capped. He says that there are other holes from plumbing that remain.
The landlord says that she does not agree that there are unreasonable gaps or draughts.
Taking into account the above matters, on the basis of the evidence presented I am unable to conclude that there are unreasonable gaps at the premises that allow draughts into or out of the premises.
In particular, in relation to the main probative evidence provided: a. The ventilation pipe in the laundry has been folded by the tenant. The purpose of the pipe is to attach a drier – I find that to the extent any such gap had previously existed the tenant has resolved this issue by folding it over. It is also a gap with an intended purpose (a drier). b. The bottom of the shed door which is attached to the house has some gaps. However, given this is a shed door I do not find the gap to be unreasonable. There are two sliding doors blocking the shed from the stairway leading to the main living area of the property. c. The tenant says there is a gap around the sliding doors. I find that the gap evidenced is part of the usual operation of a sliding door and such a gap is not unreasonable given the nature of the door. There are also two sliding doors between the shed and the stairway leading to the main living area. d. There is a vent in a cupboard – vents are part of the building’s construction and is not an unreasonable gap. e. The limited probative evidence provided of the louvre windows did not establish unreasonable gaps as it was not sufficiently clear. I note that in any event louvre windows will naturally have some gaps as part of their normal operation. f. I am not satisfied that the tenant has proven that any gaps in other internal doors allow draughts into and out of the premises. g. Locations where there are holes for utilities to enter (such as wires entering the premises). I do not accept that these gaps are unreasonable or that they cause draughts to enter.
No order is therefor made to amend the Compliance Statement in relation to this HHS.

Should an award of compensation be made for breach of quiet enjoyment?

The tenant says that the landlord has breached his quiet enjoyment and seeks compensation.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
The tenant says that the landlord dictating the fact that the downstairs room is not a bedroom and non-use of the shower is a breach of quiet enjoyment. I have set out above my finding that the clause in the tenancy agreement is enforceable. I therefore find that the landlord has not breached the tenant’s quiet enjoyment with regard to the use of the downstairs room or shower.
The tenant says there is a cap of three occupants.
This is not a breach of quiet enjoyment. A landlord may set out in a tenancy agreement the permitted number of occupants.
The tenant refers to a number of emails sent to him by the landlord concerning cancelling the tenancy agreement that were sent before the tenancy started, in connection with his dissatisfaction that the downstairs room was not a bedroom.
I find that this does not amount to breach of quiet enjoyment of the tenant’s use of the premises. This is because: i. The tenant was not living at the premises at this time and the tenancy had not started. The District Court has held in Sibilis v Croft and Byrt [2023] NZDC 26882 that no award of exemplary damages can be made for a breach of quiet enjoyment that amounts to harassment once the tenancy has ended. I find the position to be analogous when the tenant is yet to live at the premises. I consider that section 38 RTA cannot be breached before there is any entitlement to have use of the premises. ii. I find the emails from the landlord to be allowing the tenant an agreed way to exit the fixed term tenancy which he has entered into. This was a reasonable position to take given his emails. I do not find that the comments made indicate that the landlord would end the tenancy agreement without the tenant’s agreement. iii. I have found that the clauses concerned are enforceable.
The tenant also relies on the emails the landlord has sent him more recently. about the bedroom and shower referred to above. I also find that these emails do not amount to breach of quiet enjoyment.
I find that in these emails the landlord is responding to a 14 day notice given by the tenant to fix the downstairs room’s window and she sets out her position in relation to the dispute between the parties which she is entitled to do. She asks if a tenant is trying to cancel the agreement on 12 March 2024 and a number of emails are then exchanged between the parties back and forth on 18 March 2024. Both parties are actively engaged in the dialogue.
These emails are not dissimilar to letters that might be written between lawyers asserting a position when there is a dispute. The basis for the landlord’s letters is also supported by the fact I have found that the clauses complained of to be enforceable and therefore the tenant has no right to require the window to be fixed so that it is openable.
I do not find the references by the landlord saying “we cannot move on” to amount to a threat in relation to the termination of the tenancy. It is a statement of fact. Where parties cannot agree they will be unable to move on without the intervention of a third party, such as the Tribunal to solve the matter. I find her questions to the tenant about whether he is looking to cancel the agreement to also be reasonable given the difference between the parties as this could have been a resolution for the parties and the tenant was clearly unhappy with the position in relation to the downstairs room.
It is a reality of the human experience, that at times people do not see eye to eye, about various matters. When there is a genuine disagreement about things that does not amount to a breach of quiet enjoyment.
While the tenant may have found the tone of the landlord at times not to his liking (such as the reference to going down a “mis-guided path” and referring to her comments as snide or belittling) it does not amount to a breach of quiet enjoyment of the premises without interruption where a landlord is simply rude to the tenant, or where the parties dislike one another (Mcintosh v O’Malley [2022] NZTT 4325097, 4326905). A breach of quiet enjoyment requires more than a personality clash. In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal said: Quiet enjoyment means effectively the right not to have the quality of the 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.
The tenant also referred to an occasion where the landlord said she would come the following day to attach a smoke alarm. The tenant replied questioning this because an inspection was scheduled to take place not the following day but the day after that. The landlord did not come the following day. The landlord says this was a mistake, she got confused in her email and she meant the day of the inspection. I accept that this was likely a genuine error and I find that this act alone does not amount to a breach of quiet enjoyment. Further, I am not satisfied that the tenant suffered any loss because of this.
The tenant says that multiple trades had come to the property but did not pursue this allegation with sufficient particularity. He did not establish a breach of quiet enjoyment in relation to this.
The tenant says that at the first inspection shortly after the tenancy began the landlord attacked him. The parties did an inspection, and this was recorded in writing. The tenant says the landlord tried to make him write that the downstairs room was not a bedroom. He says that she became upset and angry and that she went into a folder he had put the inspection document in and ripped it. He says she was aggressive and there was yelling, and he had to ask her to leave. The tenant’s witness described how he heard yelling on this occasion but was not in the room.
The landlord admits that there was yelling on this occasion arising from the difference of opinion between the parties about the downstairs room. The landlord says she felt cheated because on the tenant’s copy of the report he had got her to sign the back page before she had changed a reference on the document to the third bedroom. She says that the tenant snatched the paper from her saying it was too late to change it now it had been signed. She says he went to put the paper in his folder so she reached to take it out. She says that she had her fingers on the form but he grabbed it so it got torn. She was angry because she felt tricked.
I find that it is established that there was yelling and a minor struggle occurred over a piece of paper. A tenant should not encounter hostility of this nature in their own home. However, I accept that the piece of paper was taken in some way from the landlord when she was writing on it because her writing comes to an abrupt end and the pen mark shown would indicate the paper being pulled away from the writer.
I find that the event is a breach of the tenant’s right to have quiet enjoyment in the use of the premises. However, overall taking into account all the circumstances of this argument I decline to make an award of compensation. In any event, I do not consider that the tenant has established a loss. Suppression and filing fee
I do not consider that either party has been wholly or substantially successful in this application. While the tenant has been successful in relation to limited work orders, made by consent, he has not been successful in relation to the issues that took up the vast majority of the hearing. I therefore decline to award name suppression to either party (s95A, RTA).
I decline to award the tenant the filing fee given the limited success of the application.

Tenancy Tribunal case 4834477 — 14-day notice at 20 Victoria Road, New Plymouth, New Plymouth 4310

Tenancy Tribunal case 4834477 — 14-day notice at 20 Victoria Road, New Plymouth, New Plymouth 4310

At a glance

Claims & awards

Order

Reasons

Should an award of compensation be made for breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Should an award of compensation be made for breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions