What was the outcome of Tenancy Tribunal case 4888202?

The tribunal order states: Sonam Sami owes Carolyn Aanand and Dave Aanand $2,588.79 and Carolyn

How much money was awarded in case 4888202?

Compensation: $850.00 awarded to tenant; Electricity Rates: $88.79 awarded to landlord; Rent Arrears: $2,000.00 awarded to landlord; Tenancy Agreement: $500.00 awarded to landlord

What type of tenancy dispute was case 4888202?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4888202?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10998408-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4888202?

The tribunal order states: Sonam Sami owes Carolyn Aanand and Dave Aanand $2,588.79 and Carolyn

How much money was awarded in case 4888202?

Compensation: $850.00 awarded to tenant; Electricity Rates: $88.79 awarded to landlord; Rent Arrears: $2,000.00 awarded to landlord; Tenancy Agreement: $500.00 awarded to landlord

What type of tenancy dispute was case 4888202?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4888202?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10998408-Tribunal_Order.pdf.

Unit/Flat Flat 1, 444 East Coast Road, Windsor Park, Tenancy Tribunal Case 4888202 — Rent arrears

Claims and awards in Tenancy Tribunal application 4888202 — net $1,738.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 10 June 2024	$2,000.00		Rent arrears to 10 June 2024
Electricity rates	$88.79		Electricity rates
tenancy agreement	$500.00		tenancy agreement
Compensation for unilateral variation of the		$850.00	Compensation for unilateral variation of the
Total award	$2,588.79	$850.00
Net award	$1,738.79
Total payable by Tenant to Landlord	$1,738.79

Claims and awards in Tenancy Tribunal application 4888202 — net $1,738.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 10 June 2024	$2,000.00		Rent arrears to 10 June 2024
Electricity rates	$88.79		Electricity rates
tenancy agreement	$500.00		tenancy agreement
Compensation for unilateral variation of the		$850.00	Compensation for unilateral variation of the
Total award	$2,588.79	$850.00
Net award	$1,738.79
Total payable by Tenant to Landlord	$1,738.79

Order

Sonam Sami owes Carolyn Aanand and Dave Aanand $2,588.79 and Carolyn Aanand and Dave Aanand owe Sonam Sami $850.00 as calculated in the table below:
The Bond Centre is to pay the bond of $2,000.00 (34441040-014) immediately apportioned as follows: Carolyn Aanand and Dave Aanand: $1,738.79 Sonam Sami: $261.21
The tenant’s claims against the landlord for: unlawful entry to the premises, failure to maintain the premises; failure to comply with the Healthy Homes Standards; and breach of the right to quiet enjoyment of the premises are dismissed.
The landlord’s claims against the tenant for: the gas connection fee; purchasing and installing a window; and costs are dismissed.

Reasons

Both parties attended the hearing which took place on 25 October 2024.
On 04 July 2024, the parties attended a case conference with a different adjudicator. Following the case conference, the Tribunal issued an Order setting out the claims to be determined at the substantive hearing. The claims are as follows: a. The landlord is claiming: i.$2,000 for four weeks’ rent arrears; ii.$2,000 being four weeks’ rent to cover the period from when the tenancy ended until the premises was re-tenanted; iii.$88.79 for an unpaid power bill; iv.$150.00 being the fee to reconnect the gas; v.$140.00 for doctor’s visits; vi.$120 for purchasing a window; vii.$900 for installing the window; viii.$345.00 in legal costs; ix.$613.00 in photocopying costs; x.$20.44 being the filing fee. b. The tenant is claiming that the landlord: i.Unilaterally varied the tenancy agreement; ii.Unlawfully entered the premises without notice or consent; iii.Breached the tenant’s right to quiet enjoyment of the premises; iv.Failed to maintain the premises and/or comply with the Healthy Homes standards; c. The tenant is claiming compensation and exemplary damages.

How much is owed for rent arrears?

The tenancy started on 01 April 2024 and ended on 10 June 2024 after the tenant gave notice.
At the hearing, the tenant advised that she is not disputing the landlord’s claim for rent arrears. The tenant said that she simply stopped paying rent during the four weeks after she gave notice as this amount was equivalent to the bond. The tenant said she needed the money to put towards a new tenancy and the landlord could take the rent owed “from the bond”.
Section 40(1)(a) of the Residential Tenancies Act 1986 (the “RTA”) provides that the tenant shall “... pay rent as and when it is due and payable under the tenancy agreement”.
The bond is paid as security for the observance and performance of the tenant’s obligations under the tenancy agreement and the RTA. There is no provision under the RTA or the tenancy agreement which permits the tenant to withhold rent because it will be covered by the bond.
I find that the tenant breached section 40(1)(a) of the RTA and award the landlord $2,000 in rent arrears.

How much is owed for power?

The landlord claims the tenant owes $88.79 for unpaid power rates. Following the hearing, the landlord provided invoices to support this claim. The tenant was given an opportunity to comment on those invoices, but no comments were received.
This claim is proved, and I award $88.79 (inclusive of GST) for unpaid power rates.

Did the landlord unilaterally vary the tenancy agreement?

On 15 March 2024, the tenant responded to an advertisement for the premises. The landlord has provided a copy of the advertisement which states (among other things) that there were to be a “[m]aximum of two people” and no dogs.
On 18 March 2024, the landlord sent an email to the tenant attaching the tenancy agreement (the “Original Tenancy Agreement”) and bond form and saying that she would “... fill in all the other details of the tenancy agreement when ... ” she saw the tenant. The Original Tenancy Agreement was not signed by the landlord. The landlord said she did not sign it due to difficulties she was experiencing with her printer.
It is worth noting at this point that the Original Tenancy Agreement did not place restrictions on the tenant’s ability to have visitors stay the night or to have dogs at the premises.
On 19 March 2024, the tenant returned the Original Tenancy Agreement signed by her to the landlord and paid the deposit. The landlord said at that point she withdrew the advertisement.
On 01 April 2024, the tenant moved into the premises.
On 18 April 2024, the landlord sent the tenant an email saying that she had the “full, completed copy of [the] tenancy agreement” and that as she was having issues with her scanner and would deliver a hard copy.
The tenant responded that day saying she already had her copy of the agreement and asking the landlord what she meant by a full completed copy.
On or about 30 April 2024, the landlord delivered a copy of the tenancy agreement with the Additional Terms to the tenant. The Additional Terms were as follows: Maximum of two (2) tenants, including children. Tenant is responsible for setting up an account with a gas supplier. Tenant is responsible for paying her/his portion of the power and water accounts on time as discussed at viewing. Tenant is supplied with building insurance documents but is encouraged to take out their own contents insurance. Oven, Rangehood, Heatpump included, 1 cat allowed, no dogs or other animals allowed on, in or around the property, no smoking/vaping by the tenant or the guests. Noise to be kept to a minimum out of respect for the neighbours and the tenant above. No parties or large gatherings to be held at the property. Overnight guests – 1 guest permitted for no more than one night per week. Tenant is responsible for their guests adhering to the terms and conditions of the tenancy agreement.
The landlord says that she took the Original Tenancy Agreement signed by the tenant and added the Additional Terms. The landlord said she added the Additional Terms because she wanted to draw the tenant’s attention to these matters. The landlord further said that the Additional Terms were matters that were “mostly covered by the RTA” and/or had already been stated in the advertisement or discussed at the initial viewing.
Section 13 of the RTA provides that tenancy agreements must be in writing and that the landlord must give the tenant a copy of the agreement, signed by the landlord before the tenancy starts.
Section 13B of the RTA provides: (1) Every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant. (2) The landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
The landlord says that the Additional Terms were not new terms because they had either been discussed with the tenant during the initial viewing or were stated in the advertisement. I do not accept this argument. If the Additional Terms were important enough to have been added to the tenancy agreement, they should have been included in the Original Tenancy Agreement.
I find that the Original Tenancy Agreement was a binding contract once the tenant signed and returned it, even though it had not been signed by the landlord. The requisite components of contract formation had been satisfied: there was an offer, acceptance, consideration, intention to create legal relations, certainty of terms and both parties had the necessary capacity to enter into the contract.
It was not open to the landlord to unilaterally vary the Original Tenancy Agreement. Any variation would have to be agreed with the tenant and comply with section 13B of the RTA. Such agreement is to be freely given. As the tenant did not sign her agreement to the Additional Terms, they were not effective.
I find that the landlord’s actions of unilaterally amending the tenancy agreement by purporting to add the Additional Terms caused the tenant distress and was very damaging to the parties’ relationship. Once the amended agreement was received by the tenant, there was a flurry of email and text correspondence between the parties which included the landlord saying: ... it is imperative that the relationships I have with my tenants is open, amicable and one of mutual trust. If you feel that this cannot be achieved then I won’t be offended if you would like to forward the required 28 days’ notice to terminate your tenancy agreement.
This is the type of situation section 13 of the RTA is seeking to avoid. By having a requirement that the landlord provides a copy of the agreement signed by the landlord before the tenant moves into the property, the terms are certain and disputes such as this are less likely to arise.
The landlord said that she tried to negotiate the Additional Terms with the tenant. However, there was no indication in the email of 18 April 2024 that the amended agreement with the Additional Terms was a proposal to vary the Original Tenancy Agreement. In addition, the correspondence shows that the landlord was not willing to compromise on the matters that had been referred to in the advertisement. On or about 06 May 2024, the landlord wrote: As a resolution, ... may I suggest that I sign your original Tenancy Agreement (excluding most of the ‘other terms of tenancy’ ... and that you agree to the prerequisites of the tenancy laid out in the advertising that you responded to... If you are happy to do this, then we can all move forward without issue, put this unnecessary, unpleasant correspondence behind us. Otherwise I will not be entering in to any further dialogue with you over this but moving forward with my own legal representation.
The tenant said that the Additional Terms affected her ability to enjoy the property. She explained that her 10-year-old daughter, who lived with her at the property, liked to have her friends sleepover and the tenant also wanted her own friends to be able to stay the night. However, the Additional Terms provided that they could only have one guest stay one night per week. 1
The tenant said that the term regarding dogs at the premises also meant she was less likely to be able to enjoy the property. The tenant explained that her former partner had a dog that her daughter was attached to and that she wanted this dog to visit her daughter at the premises. The dog did visit and this caused problems with the tenancy.
I find that the landlord breached section 13 of the RTA by failing to provide the tenant with a signed agreement before the tenancy started. However, as the tenant has not raised this claim, I decline to award damages for this claim.
I also find that by adding the Additional Terms to the tenancy agreement without first obtaining the tenant’s agreement, the landlord breached section 13(B) of the RTA. I find that the Additional Terms were not binding. However, the landlord clearly believed at least some of the Additional Terms were binding and expected the tenant to follow them (see paragraphs 44 to 47 below). The Additional Terms were onerous on the tenant and restricted her use of the property.
I award $850.00 general compensation for the breach of section 13B of the RTA.

Did the landlord enter the premises unlawfully?

The tenant claims that the landlord breached section 48 the RTA by entering the property without notice or consent: a. On or about 30 April 2024, when the landlord left the amended tenancy agreement at the front door despite the tenant having asked for the landlord to leave it in the letterbox; b. On or about 15 May 2024, when the landlord was on the property to address a draught issue and then removed cigarette butts from the plant by the front door; c. On 6 June 2024, when the landlord showed prospective tenants around the outside of the property. 1 A clause in a tenancy agreement restricting how many visitors a tenant may have at the premises may also amount to a breach of a tenant’s right to quiet enjoyment of the premises and a breach of section 137 of the RTA. However, as I have found that this clause was not part of the tenancy agreement and the tenant has not pleaded this point, I make no finding on this issue.
Section 48(1) and (2) of the RTA provides that a landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. If a landlord fails to comply with the entry requirements, then they commit an unlawful act, and therefore exemplary damages could be ordered.
Section 2 of the RTA provides that “premises” includes (among other things) any land. However, the issue for the tenant is that section 48(7) of the RTA provides “[i]n this section premises does not include land or facilities”. This means that the landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy.
As the landlord’s acts as set out in paragraph 32 above only involved the landlord being on the land, I find that they do not amount to a breach of section 48 of the RTA.
These claims are dismissed. Did the landlord breach the tenant’s right to quiet enjoyment of the property?
The tenant claims the landlord breached her right to quiet enjoyment of the premises: a. On or about 15 April 2024, by sending repetitive communication about unpaid rent when the rent had been paid; b. On or about 08 April 2024, by speaking to the neighbour about a puppy visiting the premises even though the tenant had already informed the landlord about the puppy; c. Intimidating the tenant during the tenancy: i.During a visit which took place on or about 04 April 2024; and ii.During the visit to the premises on 6 June 2024.
Section 38(2)A of the RTA provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. Section 38(3) and Schedule 1A of the RTA provides that breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.)
Did the landlord breach the tenant’s right to quiet enjoyment of the property by sending repetitive communication about unpaid rent when the rent had been paid? The tenant’s rent was payable fortnightly on a Monday. On Monday, 15 April 2024, two weeks into the tenancy, Mrs Aanand sent a text to the tenant at 7.24pm saying: “Your rent doesn’t seem to have shown up today. Can you check your account please”. The tenant replied saying that the rent had gone out and that she had set up an automatic payment for it to be paid on a Monday. The landlord replied saying she noticed it had come through quite late the previous Monday and the tenant responded saying the payment would always go through on a Monday.
At the hearing, the tenant said that the rent was not due until midnight on 15 April 2024 and that receiving the text message about rent when rent was not overdue was a breach of her right to quiet enjoyment of the premises.
I do not consider the landlord’s actions of sending the text messages regarding rent amounts to a breach of the tenant’s quiet enjoyment of the property.
This claim is dismissed.
Did the landlord breach the tenant’s right to quiet enjoyment of the premises by speaking to the neighbour about a puppy visiting the premises even though the tenant had already informed the landlord that a puppy had visited the premises? The tenant said that on or about 08 April 2024 Mr Aanand visited the premises with the oven maintenance consultant. The tenant said that she told Mr Aanand that a dog had visited the premises. The tenant said Mr Aanand responded by saying that “dogs were not allowed” in a raised voice. The tenant said that Mr Aanand then went to talk to the neighbours. The tenant said she could not hear what was being said but believed Mr Aanand was asking the neighbours about the dog’s visit.
Mr Aanand says that as he was going to be at the premises that day to speak with the oven consultant, he decided to mow the lawn. He said there was a lot of dog faeces on the lawn and that he asked the tenant if she had had a dog at the premises to which she replied, no. Mr Aanand said he went to talk to two sets of neighbours to see if they had a dog which may have been on the premises. Mr Anand said that the one of the neighbours said that there had been a dog staying at the premises. Mr Aanand said he returned to the premises and told the tenant she is not allowed to have dogs in or around the property. He said the tenant asked what about friends visiting with dogs and he said they could be outside the house tied up or left in the car.
I accept Mr Aanand’s evidence that he asked the neighbours if they had dogs at the premises. I do not find the landlord asking the neighbours if the neighbours had had a dog at the premises amounts to a breach harassment or a breach of the tenant’s right to quiet enjoyment of the premises.
The “no dogs” position was one of the Additional Terms. As set out above, the landlord clearly believed that the Additional Terms were enforceable. The attempt to enforce these terms has been taken into account when awarding compensation for breach of section 13(B) of the RTA (see paragraph 31 above).
This claim is dismissed.
Did the landlord intimidate the tenant during the visit on 06 June 2024? The tenant referred to the incident on 06 June 2024, when the landlord showed prospective tenants around the outside of the tenancy. On that day, the Mr and Mrs Aanand attended the premises with two prospective tenants. As set out above, the landlord did not enter the property but showed it to the prospective tenants from the outside. The tenant was home and objected to this. The tenant took photographs of the landlord and the prospective tenants. The tenant met the landlord on the driveway and started asking what they were doing at the premises. The tenant took a recording of the conversation and the conversation (or part of it) was played during the hearing.
The tenant’s manner during this interaction was aggressive. She repeatedly asked the landlord what they were doing there? It appeared from the recording that the tenant was trying to bait the landlord into saying something offensive to her.
The tenant says that Mr Aanand was in the vehicle and when she approached him he pointed two fingers to his head in a shooting motion. Mr Aanand denies doing this saying that he may have pointed one finger at his head in a circular motion to indicate craziness. Either way, given my finding that the landlord was entitled to show the prospective tenant the premises from the outside and the tenant’s unnecessarily aggressive manner during this visit, I find that the landlord did not breach the tenant’s right to privacy, quiet enjoyment of the premises or otherwise harass the tenant on that visit.
This claim is dismissed.
Did the landlord intimidate the tenant during the visit to the premises on 04 April 2024? On 04 April 2024, Mr Aanand visited the premises. The tenant’s mother was present. The parties had a conversation about concerns the tenant had regarding the premises. The tenant was recording the conversation and the conversation (or part of it) was played at the hearing.
During the recording, the tenant’s mother said they had called tenancy services and Mr Aanand responded by saying: “you have spoken to tenancy services, you can move out ... I don’t give a sxxt”
This statement was clearly inappropriate. Mrs Aanand said that Mr Aanand had had a difficult year with health issues and that he apologised to the tenant and her mother shortly afterwards.
As stated by this Tribunal in Mcintosh v O'Malley [2022] NZTT 4325097, 4326905: The Tribunal is a court of law, not a court of manners. It is not unlawful for a landlord to be rude. It is not a breach of a legal duty for the landlord and tenant to dislike each other.
Given that Mr Aanand apologised for his behaviour shortly afterwards, I do not find that his actions in these circumstances amount to harassment or a breach of the tenant’s right to quiet enjoyment.
This claim is dismissed.

Did the landlord fail to comply with the Healthy Homes Standard?

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals: i.If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii.If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy; iii.All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
Did the landlord breach the HHS – ventilation? The tenant claims the landlord failed to comply with the HHS ventilation standard because there was no extractor fan in the bathroom.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances. One of these exemptions applies to kitchens or bathrooms and is that it is not reasonably practicable to install an extractor fan.
As evidence that the exemption applied, the landlord has provided an email from Schneider Plumbing of 12 June 2024 saying that it would not be possible to install an extraction fan in the building without jeopardising the integrity of the building. The landlord has also provided a certificate of compliance with Healthy Homes Standards dated 03 July 2024 from Panda Solutions (the “Certificate of Compliance”). The report attached to the Certificate of Compliance confirms that the bathroom is exempt from the ventilation standard.
I am satisfied that the landlord has not failed to comply with the ventilation standard. This claim is dismissed.
Did the landlord breach the HHS - Draught stopping? The tenant claims that the landlord has failed to comply with the HHS draught stopping standard.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The tenant says that the vertical windows did not shut properly resulting in a draught in the bathroom. The landlord disagrees and says that she was advised by the tradesperson who carried out an HHS assessment that the window would likely comply if when shut it held a $2 coin in place. The landlord has provided photographs of the window holding a coin in place and text messages from 19 May 2024 with the tradesperson advising of the outcome of this test.
The Certificate of Compliance states that the draught stopping standard including “free of unreasonable gaps for windows” was satisfied.
The Certificate of Compliance was issued after the tenancy ended. The landlord did replace the window (see below). However, the landlord says, and I accept, that the window was replaced after the Certificate of Compliance was issued.
I am satisfied that the landlord has not failed to comply with the draught stopping standard.
This claim is dismissed.

Did the landlord fail to maintain the premises?

Section 45 of the RTA provides that the landlord must provide and maintain the premises in a reasonable state of repair.
The tenant said that there were issues with the oven throughout the tenancy. Initially, the problem was that the oven door would not shut properly. The tenant provided photographs of the oven not completely shut. The landlord denies that the oven would not shut properly and says that photograph does not represent the true position. In any event, a replacement oven was installed on 06 May 2024. The the tenant said that the elements would heat up but the temperature of the elements could not be controlled.
The landlord sent their oven consultant to the premises to assess the oven. He reported that the oven was working. The tenant says that the oven consultant’s English was such that they could not understand one another, and the issue was not resolved. The oven consultant confirmed to the landlord by text messages that the temperature controller was working.
The Tribunal applies the usual civil law standards and expectations. One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.
The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again, if the claim is not established to the balance of probability, it must be dismissed.
It was up to the tenant to prove that the landlord had failed to maintain the premises. I find it is more likely than not that the replacement oven did work.
This claim is dismissed. Did the tenant breach section 48 of the RTA by unreasonably withholding her consent to allow the landlord access to the premises to show prospective tenants?
The landlord claims the tenant has not allowed them entry to the premises when they were entitled to enter.
On 14 May 2024, the tenant sent an email to the landlord giving 28 days’ notice to vacate the premises.
On 21 May 2024, the landlord sent an email to the tenant saying that she was about to start advertising for a new tenant and asking the tenant to provide some times in the weekends for viewings. The tenant responded later that day saying: ... due to the current state of our tenancy and our upcoming tenancy tribunal hearing, I would prefer to have peach and privacy while I carry out the remainder of my tenancy. Therefore, viewings will have to take place after I leave the premises. However, I may be leaving earlier and will keep you updated, allowing potential tenants to view the property at your convenience.
Sections 48(1) and (2) of the RTA provides that a landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
Section 48(3) of the RTA provides that a landlord may enter the premises with the prior consent of the tenant to show to (among others) prospective tenants. Section 48(3A) provides that: For the purposes of subjection (3), the tenant- (a) may not withhold his or her consent unreasonably; (b) may make the consent subject to any reasonable condition.
Section 48 (4)(b) and Schedule 1A of the RTA provides that breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. The landlord has not applied for exemplary damages but damages for loss of rent as the premises were vacant for a period of 4 weeks after the tenancy ended. The landlord argues that if the tenant had allowed access to the property in accordance with the RTA it would have been able to rent the property earlier.
Section 49 of the RTA provides that when a party breaches the RTA or the tenancy agreement, the other party must take reasonable steps to mitigate loss or damage from the breach. The tenant says she was not aware of the obligation to allow access to view the premises and had she been aware, she would have allowed the landlord access to the premises. The landlord said it did not advise the tenant of this obligation.
I find that the tenant unreasonably withheld her consent to allow the landlord to enter the premises to show to prospective tenants and that this was a breach of section 48 of the RTA. I also find that this meant the landlord was delayed in finding a suitable tenant for the premises and suffered a financial loss as a result. However, the landlord could have mitigated its losses by advising the tenant of her obligation under RTA.
Given the landlord’s failure to mitigate its losses, I decline to award the landlord four weeks’ rent and instead make an award for one week’s rent.

Is the tenant liable for the gas reconnection fee?

The landlord has claimed the fee of $150.00 charged by Contact Energy to reconnect the gas supply. The landlord has provided a letter from Contact Energy of 21 May 2024 saying that the gas would be disconnected because they have not heard from the person living at the property regarding whether “they want to become a customer of Contact, or otherwise, ...”.
Section 39 of the RTA provides that the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. Section 45(2) of the RTA provides: The landlord shall not interfere with the supply of gas, electricity, water, telephone services, or other services to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
There is not a corresponding provision in the RTA that prevents the tenant from interfering with the supply of services.
One of the Additional Terms was “Tenant is responsible for setting up an account with a gas supplier”. As I have found the Additional Terms are not effective, I disregard this clause.
The landlord argues that the gas was disconnected because the tenant had incurred charges with Contact Energy without setting up an account. The landlord confirmed at the hearing that Contact Energy has not charged the landlord for those fees.
While those charges are likely to be exclusively attributable to the tenant’s occupation of the premises and may have resulted in the disconnection of the gas supply, I find that there was no obligation under the tenancy agreement or the RTA for the tenant to have an account with Contact Energy. I do not consider the reconnection fee can be said to be exclusively attributable to the tenant’s occupation of the premises.
This claim is dismissed. Is the tenant liable for the landlord’s emotional distress?
The landlord has claimed compensation for medical treatment which the landlord says was caused by the tenant’s behaviour. As set out above, the RTA provides that that the tenant has a right to quiet and peaceful occupation of the premises and provides for exemplary damages where the tenant has been harassed by the landlord. However, there is no corresponding provision in the RTA protecting the landlord from harassment by the tenant. The Tribunal does not have jurisdiction to hear such claims.
I make no finding as to whether the tenant harassed the landlord.

Should the landlord be awarded costs?

The landlord has applied for costs. Specifically, $345.00 for legal costs and $613.00 for photocopying costs.
Costs can only be awarded in the Tribunal in limited circumstances. Section 102(1) of the RTA provides that the Tribunal has “no power to award costs to or against any party to proceedings before it.” Subsection (3) provides the Tribunal may award “ ... the reasonable costs of that other party in connection with the proceedings” in any case to which subsection (2) applies. Subsection (2) provides: The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b) where any of the parties was represented by counsel: (c) where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner: (d) where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause.
Neither of the parties were represented at the hearing by counsel. The other exemptions to Section 102(2) do not apply.
This claim is dismissed.

Should the landlord be awarded the costs to replace the bathroom window?

The landlord says that it was not necessary to replace the bathroom window but it did so because the tenant insisted the window be replaced. The decision as to whether or not to replace the window was the landlord’s. I do not consider the tenant can be liable for these costs because the landlord felt pressure to replace the window.
This claim is dismissed.

Should either party be awarded reimbursement of the filing fee?

Both parties have had some success with their claims. However, neither party has been wholly or substantially successful. For this reason, I decline to award reimbursement of the filing fee to either party.

Should the tenant be granted suppression?

The tenant has applied for her name to be suppressed. The tenant has not been wholly or substantially successful in her claims. For this reason, the tenant’s application for suppression is dismissed.

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent arrears?

How much is owed for power?

Did the landlord unilaterally vary the tenancy agreement?

Did the landlord enter the premises unlawfully?

Did the landlord fail to comply with the Healthy Homes Standard?

Did the landlord fail to maintain the premises?

Is the tenant liable for the gas reconnection fee?

Should the landlord be awarded costs?

Should the landlord be awarded the costs to replace the bathroom window?

Should either party be awarded reimbursement of the filing fee?

Should the tenant be granted suppression?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent arrears?

How much is owed for power?

Did the landlord unilaterally vary the tenancy agreement?

Did the landlord enter the premises unlawfully?

Did the landlord fail to comply with the Healthy Homes Standard?

Did the landlord fail to maintain the premises?

Is the tenant liable for the gas reconnection fee?

Should the landlord be awarded costs?

Should the landlord be awarded the costs to replace the bathroom window?

Should either party be awarded reimbursement of the filing fee?

Should the tenant be granted suppression?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions