Published tribunal order
Tenancy Tribunal case 4842522 — Tenancy dispute at Unit/Flat A, 293 Paremoremo Road, Paremoremo, Auckland
Decided 22 Nov 2024 · Published 22 Nov 2024 · Application 4842522
- Cleanliness
- Exemplary damages
- Leaks
- Mould & damp
- Rent arrears
- Unit Titles
Order
- Within 21 days from the date of this Order the tenants must remove from the premises the lean-to structure attached to the covered deck on the premises as shown the photograph in schedule 1.
- As an alternative to compliance with Order 1, the tenant must pay the landlord $3,000.00 immediately.
- If the tenant fails to comply with Orders 1 or 2, the landlord may undertake the work and recover the cost from the tenant to a maximum of $5,000.00.
- The tenants (if they have not done so already) must pay the landlord $1,250.00 for rent arrears owing as at 23 September 2024.
- The landlord’s claim for recovery of an electrician’s call out charge is dismissed.
- The tenants’ claim for exemplary damages for breach of the landlord’s obligations regarding the bond is dismissed.
- The tenants’ claim for exemplary damages for unlawful entry is dismissed.
- The tenants’ claim for $2,500.00 for breach of the 25 May 2023 work Order is dismissed.
- The tenants’ claim for reduction of the rent payable by way of market rent assessment is dismissed.
- The landlord is to pay to the tenants the sum of $3,864.00 immediately as compensation for work done by the tenant at the premises.
Reasons
Background
- A cross application between these parties was determined in an Order made by the Tribunal dated 25 May 2023 (May 2023 Order) in applications 4545810 and 4526610.
- The May 2023 Order awarded compensation and exemplary damages to the tenants for breach of the landlord’s repair and maintenance obligations following flooding at the premises.
- The May 2023 Order included work Orders requiring that: a. by 25 June 2023 the landlord, “install appropriate drainage in driveway” b. by 25 July 2023 the landlord; i. “replace flood damaged carpet; ii. replace flood damaged vinyl in the kitchen and bathroom; iii. repair fireplace; and iv. replace flood damaged kitchen cabinetry.” The Order provided that as an alternative to compliance with those work orders the landlord was to pay the tenants $2,500.00.
- On 21 March 2024 the landlord applied for an order terminating the tenancy for rent arrears, seeking compensation for an electrician’s call out and for an order that a carport installed by the tenant be removed.
- The tenants filed a cross application on 31 May 2024 seeking compensation for work done at the premises, exemplary damages for unlawful entry and an order that the landlord pay them $2500.00 for breach of the May 2023 work Order.
- The matter came before the Tribunal for hearing, and on 4 June 2024 the Tribunal adjourned the applications as the late filing of the tenants’ cross application and supporting evidence had not given the landlord fair opportunity to assess or respond to their claims. The tenants’ application was amended to include an application for market rent assessment which the tenants thought had been included within their application.
- A further adjournment was granted on 12 August 2024, giving the parties an opportunity to consider possible settlement of the tenants’ claim for breach of the May 2023 work Order. I initially indicated that an Order would issue dealing with all other claims but on reflection I considered it was preferable that the Tribunal issue one Order determining all claims.
- A final hearing was held on 21 October 2024. Again, due to the late filing of evidence and requests for information by the tenants, leave was given for additional evidence to be filed.
- Finally, I note that on 9 October 2024 the landlord issued the tenants a notice of termination ending the tenancy on 10 January 2025 on the basis that the premises are to be put on the market for sale. The Carport
- The landlord gave the tenants permission to erect fabric “sail” type covers over an area adjacent to the covered deck on the premises, which was used as a carport.
- Subsequently, the tenants erected a more substantial structure on that area which was used for car parking and storage.
- The landlord claims that the structure created a risk of impeding proper ground water flow from the premises, increasing the risk of further flooding. The tenants deny that as a possibility.
- The landlord has provided in evidence a statement from a plumber Mr Huckle who gave evidence at the hearing. His assessment dated 1 July 2024 is as follows: “I have inspected the drainage installed at 293a Paremoremo Rd. The recently installed drainage is suitable for the property but due to the carport structure in place, the natural flood path is blocked, therefore, putting the property at risk in the event of an extreme weather event.”
- A report from Chris Wilson Plumbing Ltd dated 26 May 2024 says: “As per our previous report 02.06.2023 on the issues you were having with the drainage. It appears as we emphasised in the report, that the recreation of the overland flood path there was formed and it was imperative that this be kept completely clear of all obstacles ie. planting overgrowth etc and nothing blocking its clear path or otherwise you will be back to the same situation of excess water flooding the house, should there be any severe weather issues in the future.”
- The tenants dispute those assessments saying that the structure they have erected will have no impact on the flow of surface water across the land.
- Fixtures, alterations and alterations to tenanted premises are dealt with in sections 42 to 42B RTA. In summary the effect of those provisions is that: a. “.....the tenant shall not affix any fixture to the premises, or make any renovation alteration or addition of or to the premises except (a) in accordance with the tenancy agreement or (b) with the prior written consent of the landlord” (s. 42 RTA) b. “.....if a tenant makes a written request for consent to a fixture, renovation, alteration or addition the landlord must respond to that request in writing within 21 days” (s. 42A RTA) c. in considering such a request, a landlord must not withhold consent unreasonably; d. “.....it is unreasonable for a landlord to withhold consent to a minor change to the premises.” (S.42A RTA)
- Section 42B(2) defines a minor change as, “... any fixture, renovation, alteration, or addition of or to the premises that— (a) presents no more than a low risk of material damage to the premises; and (b) would allow the premises to be returned easily to substantially the same condition; and (c) does not pose a risk to health and safety (including during work to install, remove, or undo the minor change) that cannot reasonably practicably be eliminated or minimised; and (d) does not compromise the structural integrity, weathertightness, or character of any building; and (e) would not have an unreasonable negative effect on any person’s enjoyment or use of any property outside the premises; and (f) does not require any regulatory consent (for example, a building consent); and (g) does not breach any obligation or restriction relevant to the premises (for example, an obligation or a restriction imposed by a bylaw, a planning or body corporate rule, or a covenant).”
- Given what can be inferred from photographs of the structure and more importantly the evidence about its potential impact on water flows at the property, I find that the landlord would be justified in considering that structure to constitute more than a minor change to the premises. Nor would it be unreasonable for the landlord to withhold consent to that structure being erected.
- The evidence does not show the tenant having made a written request to the landlord, before the addition/ fixture was constructed, setting out the proposed addition/ alteration and seeking consent for it
- In those circumstances I find that the tenant was in breach of s.42 RTA by making a fixture, alteration renovation or addition to the premises without the landlord’s prior written consent. The structure must therefore be removed. Rent
- Rent records provided for the hearing show that at the date of the rent report on 2 September 2024, the tenants had made a rent payment of $745.00 on 1 September 2024, leaving arrears of $1250.00 owed at the end of that current rent week, ending 5 September 2024. Electrical call out
- The tenants contacted the landlord about their fridge not working. The landlord arranged for an electrician to investigate. The electricians report dated 3 March 2024 notes “Investigated fridge not working. Found it to be isolator and pantry turned off. Turned on and checked PowerPoint. Working.”
- The landlord claims compensation for the electrician’s charge of $146.63 which it says has resulted from an unnecessary call out.
- The tenants’ evidence is that after repair work had been done in the kitchen, it was not apparent where the isolator switch was and that it hadn't been pointed out to them. They were not aware of having a turned off the fridge.
- The tenants would be liable to compensate the landlord for that call out cost if it was caused by negligence or carelessness on the their part. The evidence does not persuade me, on balance, that the tenants acted carelessly or negligently in relation to the electrician’s call out. That claim is declined. Bond
- The tenancy started on 8 March 2018. Bond Centre records show that the bond was lodged on 13 March 2018 after having been sent in by the landlord on five March 2018.
- The evidence does not show a breach of the landlord’s obligations in dealing with the tenants’ bond May 2023 Work Order
- Much of the hearing time involved consideration of the tenants’ claim that the landlord had breached its obligation to comply with the May 2023 work Order.
- The tenants’ claims are that: a. the required work was not completed within the prescribed time frame: and b. that drainage installed in the driveway was not appropriate.
- Evidence provided by the landlord from communications between it and the insurers, shows that the landlords promptly notified the insurer about the time frame specified in the May 2023 Order within which the specified repairs needed to be completed.
- An e-mail to the insurer dated 7 June 2023 notes, “As per court order the below repairs must be completed by 25 July 2023 - replace damaged carpet, replace damaged vinyl in kitchen and bathroom, repair fireplace, replace damaged kitchen cabinetry”
- An e-mail on 16 June 2024 says, “We have had our scope reviewed and approved by [the owners], I have a contractor lined up and ready to start on 26 June with an expected completion date of 21 July. We are currently preparing the minor works contract I have advised [the owner] and I believe she will be contacting you about temporary accommodation for the tenants. As the kitchen is being removed for repairs this means the property becomes uninhabitable. The tenants will need to move out for the duration of the reinstatement works. This is being done as quickly as possible as we know about the reasons for urgency.”
- A later e-mail from the contractor says, “Following on from our previous e- mail, you advised over the phone that the tenants had agreed to move out for four days. I've taken this as high as I can at Vero and as a result of the discussion we will not be able to carry out a managed repair at the property. As due to the reasons below the property is classed as uninhabitable. We cannot send the contractors in to do the works unless the tenants vacate the property for the entire duration of the works. If we were to go off the original dates provided by our contractors- start- 26/06, finish 21/07 = 26 calendar days.
- as the remedial works require the kitchen to be disconnected and removed for a time this makes the property uninhabitable
- water and power to the entire property will be turned off at times during the works. This is doubled up by the fact that the property is on tank water so when the power is turned off there will be no drinking water or sanitary water - No working bathroom would again make the property uninhabitable
- as the tenants plan to live in the upstairs area while downstairs is being worked on there will be times where the stair access will be blocked with mobile scaffolding during the painting of the mezzanine/ lounge area...”
- The tenants resisted vacating the premises, expressing a different view about the habitability of the premises while the repair work was being carried out. The tenants were offered alternative accommodation at no cost, which was not covered by the owners’ insurance, including, because the tenants had several dogs, the option to find their own accommodation with an equivalent subsidy.
- The evidence persuades me that the landlord did everything it reasonably could to comply with the May 2023 work Order. The work was scheduled to be completed within the required time frame and what prevented the work being completed within that time frame was the continuing negotiation over the tenants vacating the premises.
- Even if the tenants were correct in their view that the work could be completed with them only vacating for a shorter length of time, that is not something the landlord can be criticised for. The landlord’s position was dictated by the requirements of their insurers and the contractor.
- For those reasons I find no breach of the landlord’s obligations in terms of the May 2023 work Order and the claim is declined.
- The second part of this claim relates to the requirement in the May 2023 work Order that appropriate drainage be installed in the driveway.
- The tenants claim that is that the drainage that was installed was inappropriate in that: a.additional channel drains were required across the driveway to adequately deal with the flow of water; b.the channel drains that were installed were not adequate; c.to be effective the channel drains should have been encased in concrete rather than in gravel subject to movement.
- The tenant has provided photographs showing the drains in a severely damaged state, unlikely to achieve their intended purpose.
- At the hearing, evidence was given by Mr Wilson, who the owners consulted about the drainage requirements and from Mr Huckle who installed the drains.
- Their evidence is that the drainage installed was adequate. Their evidence is that the materials used are standard and that it would not necessarily be advisable to have encased the drains in a solid and inflexible material like concrete. They did emphasise the importance of the drains being cleared regularly to maintain their effectiveness.
- The owner gave evidence of having witnessed the drains with the drain covers removed, making the sides of the drain susceptible to collapse when driven over, especially if driven over by larger vehicles, which the owner says the tenants regularly drove over the driveway.
- The tenants have taken height and level measurements which they says prove the inadequacy of the installed channel drains given those levels and water flows.
- The tenants also provided a statement from a plumber, Mr Kumerich ,saying that, “I inspected the condition and measured the heights of drains and channel grates that take groundwater. We determined the heights in different parts of the driveway compared to the garage floor and inside floor heights. I also looked at the stormwater from the new roof and the culvert on the opposite side of the driveway to the house. It is my determination the measurements shown on the accompanying letter are accurate I have verified them on site. While I can't comment on any other issues, I can confirm that the conclusions explained in the accompanying document written by [the tenant] are correct. “
- Mr Kumerich was not called as a witness to be asked about his statement. While his statement confirms the measurements taken by the tenant, it is not evidence that the drainage installed by the landlord was not “appropriate” as required by the May 2023 Work Order.
- I do not find that claim proved. Compensation for work undertaken
- The tenants claim compensation of $3,864.00 for annual cleaning of the guttering and waterblasting work as set out in the invoice provided.
- The landlord does not dispute that the work was done and that it was work that the landlord would otherwise have had to pay someone else to do and the claim is accepted. Market Rent
- The weekly rent payable under the agreement when the tenancy started in March 2018 was $665.00.
- The rent weas increased to $685.00 from 30 April 2021 then to $700.00 from 23 December 2022.
- A notice of rent increase was given to the tenants increasing the rent payable to $745.00 effective 29 March 2024. The tenants challenge that latest rent increase.
- Section 24 RTA allows a landlord to increase the rent, more than 12 months after the last increase, on giving 60 days’ notice.
- Section 25 RTA provides that: “On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent.”
- For the purposes of that provision, market rent is, “...the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents ..........for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
- The factors impacting on an assessment of market rent are generally: a. the location of the premises; b. the characteristics of the particular premises (size, facilities, number of bedrooms etc); c. the age and condition of the premises.
- These premises are a 3 bedroom, 2 story home constructed in around 2000.
- The tenants have provided evidence of a listing for a 2 bedroom home in Albany for $600.00 per week.
- The landlord has provided some examples of rental listings showing rents ranging from $690.00 to $850.00.00 for 3 bedroom properties in Albany. A 3 bedroom property in Paremoremo is shown as listed for $825.00.
- These appear to be quite different properties than these premises. The listings themselves do not of course confirm that willing tenants were prepared to pay those advertised rents.
- Data held by Tenancy Services for Paremoremo is not particularly helpful. Of the 81 bonds held it shows a range of $550.00 for the lower quartile of rents, $700.00 for the median quartile and $770 for the upper quartile. The number of bedrooms in the properties for which that data is held is not apparent.
- As this is the tenant’s’ claim it is for them to provide evidence to prove that the amount to which the rent was increased from 29 March 2024 , ”... exceeds the market rent by a substantial amount.” No expert and independent assessment of what a market rent for these particular premises might be, has been provided.
- If the amount to which the rent was increased represented a major jump in the rent claimed, the Tribunal might consider that the landlord should provide evidence to prove that such a jump was justified in market terms. Here, the rent previously payable was $700.00, having been increased to that amount from $685.00 in April 2021, from the initial rent in March 2018 of $665.00.
- That would represent a 12% increase over the 6 years from the start of the tenancy to the date of the latest increase. That level of increase is not, of itself, of such a degree as to put the evidential onus on the landlord.
- To support their claim the tenants would need to provide some reliable evidence that the increase would mean the rent claimed is a substantial amount beyond what a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy. An independent appraisal would be a helpful starting point.
- The evidence available does not, on balance, show that to be the case. That claim is dismissed. Unlawful Entry
- The tenants claim that the property manager unlawfully entered the premises.
- The situation seems to be that the property manager came to the premises for an inspection. Mr Bate was not present. Mrs Bate would have preferred for the inspection not to have been conducted without Mr Bate being present and feels that the property manager “bulldozed” his way into the premises to do the inspection anyway. The evidence does not show that it was made clear to the property manager that the inspection should not take place,
- The file records provided by the landlord suggest that notices of intended inspection were properly delivered to the tenants before inspections took place.
- I accept that Mrs Bate may have felt vulnerable and apprehensive about the inspection having taken place without Mr Bate present, but if notice of the inspection had been given, in terms of s.48(2)(b) the landlord had a right of entry and the entry was not unlawful.
- The tenants had a concern that while undertaking the inspection, the property manager took photographs of their personal items, which breached their rights of privacy. That would not be acceptable but would not make the entry itself unlawful.
- That was an issue discussed at the June hearing and covered by the June Order that: “In addition, within 48 hours of the date of this Order, the landlord is to provide to the tenants by e-mail a copy of any photographs taken by the landlord at the last inspection undertaken by the property manager Mr Harris.”
- The Order also recorded, “I note for the record Mr Harris’ formal evidence that no photographs were taken at his last inspection of the premises in addition to those included in the property inspection report which will be provided to the tenants under Order 6.”
- The evidence does not prove otherwise.
- The tenants’ claim fore exemplary damages for unlawful entry into the premises is declined.
- As each party has had claims both upheld and declined, no order is made regarding the filing fee.