What was Tenancy Tribunal case 4904835 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4904835?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4904835?

The primary dispute was Healthy homes. Related themes: Unit Titles.

Where can I read the official tribunal order for case 4904835?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10805737-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4904835 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4904835?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4904835?

The primary dispute was Healthy homes. Related themes: Unit Titles.

Where can I read the official tribunal order for case 4904835?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10805737-Tribunal_Order_Redacted.pdf.

Unit/Flat 739, 35 Hobson Street, Auckland Central, Tenancy Tribunal Case 4904835 — Healthy homes

Order

The application is dismissed.

Reasons

Both parties attended the hearing on 5 September 2024.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or 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.” (the emphasis is mine).
The essential facts are not in dispute.
The tenancy commenced on 10 July 2019.
The tenanted unit is on the top floor of a multi-story building in Auckland. The landlord owns one of the more than 200 units in the block. The building is a unit title development, so is controlled by a body corporate.
In March 2024, the tenant noticed a noise emanating from the roof of the building. He indicated that the noise was a mechanical hammering and drilling sound. The noise carries on for 24 hours a day, seven days a week.
The tenant spoke to the building manager (as distinct from the property manager). The building manager is the onsite representative of the body corporate, and the property manager is the representative of the owner of this unit.
The building manager was initially able to get the noise to abate.
Unfortunately, the noise commenced again in April 2024.
The tenant raised the issue with the building manager. The building manager said that the noise was coming from one of four ventilation units servicing the whole building. He said that they could not be turned off and they were not able to stop the noise.
The ventilation units are part of an ongoing maintenance plan by the body corporate which means that at best, they may be replaced or repaired by the end of March 2025, although the reality is such that it is likely to be later than that.
The tenant spoke to the property manager on 8 April 2024 and 10 April 2024. The property manager said that his client was unable to fix the problem. On 23 May 2024, the tenant issued a 14-day breach notice to the landlord.
The tenant explained that of recent times, the noise has gotten louder. The volume of the noise is such that the tenant can no longer sleep in the sole bedroom. The tenant, his partner and child now all sleep in the lounge.
The tenant has asked the Tribunal for a work order to have the landlord stop the noise and for a reduction in the rent pending the noise being abated.
The Tribunal cannot issue a work order against the landlord as the issue complained of emanates from a part of the building which the owner neither owns nor has control over. As I understand matters, the noise is coming from body corporate controlled property. The application is dismissed.
Section 38(2) RTA provides that a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
In this case, as mentioned, the building is controlled by the body corporate and not the landlord. The noise emanates from the rooftop, which is part of the common area of the building controlled by the body corporate and not the landlord. There has been no breach by the landlord of the tenant’s quiet enjoyment. The landlord has not caused or permitted the interference with the tenant’s quiet enjoyment.
Whilst I have great sympathy for the tenant and the predicament, he finds himself in, the RTA does not allow for a remedy in the circumstances complained of and the application is dismissed.
Both parties have applied for name suppression. The landlord has been wholly successful in the hearing and suppression of the landlord’s name is ordered. The tenant’s application has not been wholly or substantially successful and the application is dismissed.
The tenant not having been successful , no order is made with regards to the filing fee.

Order

The application is dismissed.

Reasons

Both parties attended the hearing on 5 September 2024.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or 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.” (the emphasis is mine).
The essential facts are not in dispute.
The tenancy commenced on 10 July 2019.
The tenanted unit is on the top floor of a multi-story building in Auckland. The landlord owns one of the more than 200 units in the block. The building is a unit title development, so is controlled by a body corporate.
In March 2024, the tenant noticed a noise emanating from the roof of the building. He indicated that the noise was a mechanical hammering and drilling sound. The noise carries on for 24 hours a day, seven days a week.
The tenant spoke to the building manager (as distinct from the property manager). The building manager is the onsite representative of the body corporate, and the property manager is the representative of the owner of this unit.
The building manager was initially able to get the noise to abate.
Unfortunately, the noise commenced again in April 2024.
The tenant raised the issue with the building manager. The building manager said that the noise was coming from one of four ventilation units servicing the whole building. He said that they could not be turned off and they were not able to stop the noise.
The ventilation units are part of an ongoing maintenance plan by the body corporate which means that at best, they may be replaced or repaired by the end of March 2025, although the reality is such that it is likely to be later than that.
The tenant spoke to the property manager on 8 April 2024 and 10 April 2024. The property manager said that his client was unable to fix the problem. On 23 May 2024, the tenant issued a 14-day breach notice to the landlord.
The tenant explained that of recent times, the noise has gotten louder. The volume of the noise is such that the tenant can no longer sleep in the sole bedroom. The tenant, his partner and child now all sleep in the lounge.
The tenant has asked the Tribunal for a work order to have the landlord stop the noise and for a reduction in the rent pending the noise being abated.
The Tribunal cannot issue a work order against the landlord as the issue complained of emanates from a part of the building which the owner neither owns nor has control over. As I understand matters, the noise is coming from body corporate controlled property. The application is dismissed.
Section 38(2) RTA provides that a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
In this case, as mentioned, the building is controlled by the body corporate and not the landlord. The noise emanates from the rooftop, which is part of the common area of the building controlled by the body corporate and not the landlord. There has been no breach by the landlord of the tenant’s quiet enjoyment. The landlord has not caused or permitted the interference with the tenant’s quiet enjoyment.
Whilst I have great sympathy for the tenant and the predicament, he finds himself in, the RTA does not allow for a remedy in the circumstances complained of and the application is dismissed.
Both parties have applied for name suppression. The landlord has been wholly successful in the hearing and suppression of the landlord’s name is ordered. The tenant’s application has not been wholly or substantially successful and the application is dismissed.
The tenant not having been successful , no order is made with regards to the filing fee.

Tenancy Tribunal case 4904835 — Healthy homes at Unit/Flat 739, 35 Hobson Street, Auckland Central,

At a glance

Tenancy Tribunal case 4904835 — Healthy homes at Unit/Flat 739, 35 Hobson Street, Auckland Central,

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions