Published tribunal order
Tenancy Tribunal case 4910353 — Rent arrears at Unit/Flat 2, 125 Aranui Road, Mount Wellington, Auckland
Decided 10 Oct 2024 · Published 10 Oct 2024 · Application 4910353
Mixed / unclear
- Rent arrears
- Smoke alarms
Order
- The tenant must carry out the following work to the premises, which must be completed by 5.00pm on the 24 th of October 2024: a. Remove the unconsented structures in the property covered by the blue and green tarpaulin. b. Remove the two unconsented sheds off the property. c. Remove the broken-down car and 20 tyres from the property. d. Removal all the inorganic goods off the premises e. Remove all the rubbish and inorganic goods from the garage.
- As an alternative to compliance with Order 2, the tenant must pay the landlord $20,000.00 immediately.
- If the tenant fails to comply with either Order 2 or 3 above, then the landlord may undertake the work and charge the tenant the costs of this work up to $10,767.43. These costs may be treated as rent in arrears and enforced accordingly.
- The garage is not to be used as a sleeping/living area.
- The maximum number of people permitted to reside in the property is 3, the tenant and her 2 children.
Reasons
- Both parties attended the hearing.
- The landlord seeks a work order for the removal of inorganic rubbish and goods, broken-down car bodies and tyres from the property, removal of the unconsented sheds and illegal structures.
- In addition, the landlord claims the tenant has exceeded the number of people residing at the property. Finally, that the garage is to be cleared out and not used as a living/sleeping area. Exceeding the number of people residing in the premises s40(3) RTA
- The landlord claims that the tenant has breached her tenancy agreement by exceeding the number of people residing at the property. The tenancy agreement states that the residents are the tenant and her two children only. The tenant has a friend “Mike” that has been residing in the garage during the tenancy.
- The landlord has sought to have Mike leave the property and provided notices to the tenant for the breach of her tenancy agreement. Mike continues to stay at the property.
- Exceeding the number of people that may reside in the premises during the tenancy, is a breach of s40(3) of the Residential Tenancies Act 1986 and the tenant’s Tenancy Agreement with the landlord.
- Breaching s40(3) of the RTA is an unlawful act and the tenant may be fined a maximum of $1000.00 for the breach. The landlord can seek to terminate the tenancy for the breach. See s56 of the RTA which permits the Tribunal to order termination of the tenancy where a tenant has breached a provision of the RTA and/or Tenancy Agreement.
- The landlord is not seeking that the tenant be fined nor applying for termination of the tenancy at this stage. However, the tenant is reminded that the landlord can apply for these remedies if the tenant does not comply with their instruction for Mike to cease residing at the premises. Tenants responsibly to keep the premises reasonably clean and tidy s40 (1) (c) RTA
- The landlord claims that the tenant has breached her tenancy agreement by not keeping the property reasonably clean and tidy.
- The landlord has provided photos of inspections of the property in May and September 2024. The property is littered with rubbish and a large amount of inorganic goods and possessions. The possessions appear to be scrap metal, broken appliances, scooters, plastic tubing and a vast amount of other rubbish and goods. The property is in a terrible mess and is extremely unclean and untidy.
- The tenant had erected a number of illegal structures, covered by blue and green tarpaulin, which are housing more inorganic goods and possessions. The tenant has placed two unconsented sheds on the property and filled them with more inorganic goods.
- The garage is full of rubbish, inorganic goods and household appliances and bedding. It would appear that Mike has been residing in the garage and using the bed, microwave and fridges in the garage.
- The landlord seeks that the garage is not used as a living/sleeping area and that the garage is cleaned up and inorganic rubbish and goods be removed.
- During the September 2024 inspection the landlord found approximately 20 tyres on the property and three car wrecks. Since that inspection, the tenant says that two of the car wrecks have been removed. The landlord seeks the removal of the last broken-down car on the property.
- The tenant is to remove the broken-down car, 20 tyres, all inorganic rubbish and goods/possessions from the garage and the whole property.
- The two unconsented sheds are to be removed and the two illegal structures.
- The landlord wants the problem fixed.
- Under section 40(1)(a) -(e), Residential Tenancies Act 1986, a tenant has specific obligations in relation to the tenancy premises.
- Where the Tribunal finds, the tenant has failed to comply with any of these obligations, where appropriate 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. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the landlord to undertake the work and charge the tenant the costs of doing the work if the tenant 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 treated as rent in arrears and enforced accordingly. See sections 78(2AAB) and 78(2AAC) (a) Residential Tenancies Act 1986.
Has the tenant failed to comply with their obligations?
- The landlord has served the tenant with notices to comply with their tenancy agreement, met with her onsite and tried to work with her for over the last year. The tenant provides excuses to the landlord and does not honour the arrangements made with the landlord to remedy the problems.
- I find that the premises are unclean and untidy. The tenant has until 5.00pm on 24 th October 2024 to remedy the breach or the landlord may to carry the work and charge the tenant with the costs of work. These costs will be treated as rent arrears.
- A quote for $1010,767.43 has been provided for the work to be done. If the tenant fails to do the work the landlord may bill the tenant $10, 767.43 for the cost of the work.