What was the outcome of Tenancy Tribunal case 4916374?

The tribunal order states: Anya Langguth must pay Proman Management Limited As Agent For Matt

How much money was awarded in case 4916374?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4916374?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4916374?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11080584-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4916374?

The tribunal order states: Anya Langguth must pay Proman Management Limited As Agent For Matt

How much money was awarded in case 4916374?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4916374?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4916374?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11080584-Tribunal_Order.pdf.

50 Murphy Road, Wainui, Gisborne 4010 Tenancy Tribunal Case 4916374 — Rent arrears

Order

Anya Langguth must pay Proman Management Limited As Agent For Matt Parker & Ellyce Stehlin $353.71 immediately, calculated as shown in the table below:
All other claims are dismissed.

Reasons

Mr Stehlin, representing the landlord, and Ms Langguth, the tenant, both attended the hearing.
The hearing was held face-to-face in two parts, on 5 September 2024 and on 14 November 2024.
The tenant has applied for compensation, market rent, breach of Healthy Homes Standards in relation to draughts, failure to provide Healthy Homes Standard information. During the first hearing, the tenant withdrew all her claims relating to any breaches of Healthy Homes Standards, including the claim of failure to provide Healthy Homes Standard information.
The landlord has applied for termination of the tenancy, rent arrears and refund of the filing fee. Background
The tenancy began on 15 January 2024, shortly after the landlord purchased the property. The parties agreed that there were some discussions between them before the tenancy started that there would be some work completed at the property during the tenancy. The tenant understood that one boundary fence along a shared driveway was to be moved and replaced and some vegetation would also be removed. The landlord said that one of the boundary fences encroached on a neighbour’s property and so had to be moved and replaced and trees and bushes around there would have to be moved as part of this process. However, the landlord said that they did not fully understand the extent of the work that would be required until they got into the property and saw what was needed. As a result, three boundary fences were replaced, and significant vegetation was removed, along with tiles and a patio. The landlord did not recall discussing with the tenant the additional work that would be required at the property, prior to it being done. The tenant had understood that she would be living at a property with significant privacy from trees, bushes, fences, and a wall that ran perpendicular to the boundary fence along the shared driveway, which she said protected her privacy from neighbours. The landlord said that the perpendicular wall, which was a significant issue between the parties, had to be removed as it ran along an area where they likely had to put new effluent lines for a new septic tank, which he believed would require replacing in the very near future, given the age of the current septic tank (estimated at more than 40 years old). The tenant said due to the landlord’s building work at the property, the property was unrecognisable from the one she originally agreed to rent, as she no longer had any privacy in the garden from the surrounding neighbours’ houses, street and driveway.
The tenant said at the hearing that the landlord probably told her he would put up a replacement boundary fence along the shared driveway but she could not remember about this. She said the landlord did not tell her the perpendicular wall would be removed and not replaced, rather that he told her this would be replaced.
The landlord said they rebuilt a fence along the shared driveway boundary that was 1.8 metres, so was much higher than the original fence had been, and that they had made provision for a privacy area at the front of the property instead of where the privacy area had originally been at the side of the property, along the shared driveway boundary.
The tenant said the new boundary fence along the shared driveway stopped part way along the boundary and did not protect her privacy in the same way the former trees, higher than the original fence, and the perpendicular wall had done. The tenant said she took matters into her own hands and purchased trellis panels and installed them where the perpendicular wall had been, to protect her privacy. She confirmed there was no discussion or agreement about this between she and the landlord. The tenant then withheld rent in the amount of $1,350.00, as what she felt was compensation for what she paid for the trellis and plants. Despite numerous requests and notices from the landlord asking her to pay these rent arrears, the tenant refused to pay the $1,350.00 she said she had paid for the trellis and plants, which she said provided some privacy and improved the property after the building work.
The landlord countered that they did not want any trellis panels or any other fencing in this area where the tenant had installed them, because of the work they expect to do shortly replacing the septic tank, but they were happy for the trellis to remain in its current position and for the tenant to remove it and take it with her when she leaves the property, or when any work in that area has to be done. The landlord refused to pay for the tenant’s trellis, and said the tenant now has a view of the ocean.
The tenant also said the building work at the property had been more significant and had taken much longer than she anticipated. She said she was subject to these building works for around 6-8 weeks, until around early March 2024, with builders and other contractors constantly at the property, and texts about them being at the property, which were also constant. The landlord said that, whilst there were contractors at the property, it was not constant, but was from time to time when they became available to do the work.
The tenant said that she asked the landlord to clean up the property after the building work was finished, around March 2024, and to replant the garden to restore it to being a nice property for which she felt she was paying significant rent, but the landlord refused to do so. She purchased plants at her own cost and put them in around the borders of the garden. The tenant provided photographs of the before and after condition of the garden and its borders around the house. The landlord agreed, after viewing these photographs at the hearing, that the tenant had improved the garden and borders and he agreed to pay for cost of the plants she claimed.
The parties agreed that weekly rent was to be $900.00, as per the Tenancy Agreement. However, the tenant said she had initially misunderstood this and had thought the landlord had reduced weekly rent of $1,000.00 to $900.00, to compensate her for building work being completed during the tenancy, which the landlord said was not the case. In the second hearing, the tenant clarified that she then understood, after hearing evidence in the first hearing, that the rent of $900.00 in the Tenancy Agreement was what had been agreed between the parties. Tenant’s Claims Compensation
The tenant claimed $1,350.00 as compensation for the cost of the trellis and plants, as outlined above. At the second hearing, when going through the receipts she had provided, the tenant amended her claim to $996.29, to reflect the total amount of the receipts provided. Of these receipts, one for $856.00 and another for $140.29, $26.00 was attributable to plants the tenant purchased for the garden, which she claimed. The balance of $970.29 was attributable to materials for the trellis. The tenant said she had paid for more plants that she put in the garden but had not claimed for the other plants.
The landlord agreed to pay the tenant for the plants she claimed, which is $26.00 in the receipts provided. Therefore, I award the tenant $26.00 for the plants she purchased, as claimed.
The landlord refused to pay for the trellis, as they said they did not want a trellis there, and that the materials used for the trellis were cheap, unreliable and not sturdy enough. The landlord said they were happy for the tenant to leave the trellis there, whilst she remained living at the property, if she removed it and took it with her when she left, at her cost, and also if she removed it if any work had to be done in that area.
The perpendicular wall was there at the start of the tenancy, as viewed by the tenant then. In my view, the tenant had a reasonable expectation that the perpendicular wall would continue to be there during the tenancy. The tenant provided a copy of a text to her from the landlord dated 28 March 2024, saying, “I changed my mind and decided not to build a new perpendicular fence as it would restrict access to the rear yard...any such fence including gates would prevent machinery and truck access to side and front yards.” The landlord’s assertion about this was strongly disputed by the tenant at the time and since. I find this text from the landlord to the tenant dated 28 March 2024 implies that the landlord had agreed before this to build a new perpendicular fence in that area, after building work was completed, but later changed his mind as per his text of 28 March 2024. As such, I find there likely was agreement between the parties prior to 28 March 2024 that the landlord was going to replace the perpendicular wall in some manner, and that the landlord had an obligation to do so. Given that this did not occur, I find there likely was a breach of the landlord’s obligation to replace the perpendicular wall.
Section 49 Residential Tenancies Act 1986 (“RTA”) provides that, where any party to a tenancy agreement breaches any of the provisions of the agreement or of the RTA, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
I find the tenant here was effectively mitigating her loss by replacing the privacy barrier that was the perpendicular wall, that should have been replaced by the landlord. Thus, the landlord should compensate the tenant for the cost of this mitigation of loss. The costs directly associated with the purchase and installation of the trellis by the tenant, as per her receipts, were $970.29. The landlord is to pay the tenant $970.29 to compensate her for this loss.
To be clear, when the tenant leaves the property, she is under no obligation to take the trellis with her or pay for its removal. The landlord may dispose of the trellis at the end of the tenancy, as they see fit, at their cost.
At the second hearing, the tenant confirmed she was not claiming any compensation for loss of amenity during the time of the building work at the property. Market rent
The tenant claims market rent is excessive for the facilities and amenities the property provides. She believes a weekly rent of $800.00 is more reasonable market rent for the property.
The tenancy property is a 3-bedroom house within a short walk to Wainui Beach. The house has a modern kitchen, open plan dining room and lounge areas, a fire and air conditioning unit, along with access to the beach and off- street parking. The parties agreed that a rumpus room in the house can be used as a fourth bedroom.
The tenant said that two of the three main bedrooms are very small. She did not think the rent charged of $900.00/week reflected the older age and condition of the property, and that two of the main bedrooms were smaller. Further, the tenant provided photographs of the interior of the property and pointed to the older age and less well-maintained aspects of the properties, which she believed should be reflected in lower weekly rent.
Ms Langguth provided advertisements for three other properties in the Okitu and Wainui area, which advertised rents that were $850.00, $980.00 and $1,050.00 per week respectively. Unfortunately, advertised rents do not necessarily reflect the weekly rent that the parties who take those properties agree to pay once a property is rented. Also, two of the advertisements indicated the number of bedrooms – one was a 2-bedroom property, and another had 3 bedrooms. However, a third advertisement had no information at all about the number of bedrooms or amenities provided, only some photographs.
The tenant also provided copies of Tenancy Services bond data for rents in Wainui, Gisborne. The bond data she provided for the period from 1 November 2023 to 30 April 2024, for a 3-bedroom rental, had lower quartile rent at $830.00, median rent at $830.00 and upper quartile rent at $900.00. A further copy of Tenancy Services Bond Data was discussed with the parties at the first hearing, for rents in Wainui, Gisborne, for the period 1 January 2024 to 30 June 2024, where lower quartile rent was $513.00, median rent was $658.00 and upper quartile rent was $900.00. There was no evidence provided as to which quartile of the bond data discussed that the parties believed this property fell into, however.
At the first hearing, the landlord provided a market rent appraisal dated 12 April 2024 from Lewis Wright for the property. The author of this report, Che Whitaker, visited the exterior and interior of the property on 12 April 2024 and assessed an adopted rent for the property as being $900.00 per week. Whilst the report assessed that adopted rent based on a fixed-term tenancy, and this is a periodic tenancy, Mr Whitaker later confirmed in writing that he assessed the same adopted rent of $900.00 per week for a periodic tenancy for this property.
The Lewis Wright report described the two-storied, three-bedroom property, with a non-consented rumpus room to be a property in the coastal settlement of Wainui, on a 639 square metre section, approximately 6 kilometres from Gisborne’s central business district and only 60 metres from Wainui Beach, with a shared right of way access to Wainui Beach. The property’s condition was described in the report as being reasonable with exterior paintwork generally modern and well-presented, apart from minor rust to some of the window flashings, and the interior décor being modern to most rooms, apart from general wear and tear. The garage/laundry was reported to be in fair condition.
Section 25 of the Residential Tenancies Act 1986 (“RTA”) provides: (1) 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 market rent by a substantial amount, make an order reducing the rent to any amount, to be specified in the order, that is in line with the market rent. (2) ... (3) For the purposes of the Act, the market rent for any tenancy shall be 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 (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant. (4) An order made under this section shall take effect on and from a date to be specified in the order which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order.
The questions the Tribunal must determine are as follows: (1) Firstly, what a market rate of rent would be for these premises; (2) Secondly, whether the rent payable is substantially above the market rate, and, if so: (3) Thirdly, what the rent should be.
In Fisken & Associates Limited v Lecole and Lecole [2023] NZDC 17698, the District Court stated that the Tribunal must first determine what the market rent is, and then decide if the current rent would substantially exceed it.
The Court in Fisken discussed the required evidence in market rent assessments, observing: I recognise that truly independent evidence may not be available in a smaller district like Queenstown because the likely source of expertise is from real estate agents and property managers involved in the residential rental market who will generally act for landlords. However, rentals paid for comparative properties are objective facts which can be proven.
A rent assessment completed by a registered valuer would be the type of independent evidence referred to in Fisken. A valuation is usually given significant weight 1 , but even so this depends on the quality of evidence used in the report 2 . 1 Housing New Zealand (Manurewa Neighbourhood Unit) v Abel TT Otahuhu TT 401/94 2 See for example in West v Housing New Zealand TT Wellington TT 685/96, where the tenant’s evidence was preferred to the landlord’s “flimsy valuation”.

What would a market rent be for these premises?

I have weighed the evidence presented by the parties, including the Tenancy Services Bond data and other information, such as the rental advertisements, referred to by the tenant. I note there was little evidence by way of photographs or other information, about how comparable the properties in the advertisements of other properties in the area provided by the tenant were, or what these properties were rented for, once rented. Given the lack of evidence provided about their comparability with the property in question, I am unable to put much weight on the tenant’s advertisements for rent for other properties in the area.
Given the evidence provided by the parties here, I find the best evidence available to the Tribunal relating to market rent for this tenancy property in Wainui, Gisborne is the valuation report from Lewis Wright provided by the landlord. This report assessed the condition and location of the property, after visiting the interior and the exterior of the property and considered market rent conditions generally in the Gisborne area, and in the Wainui Beach area generally. As such, the Lewis Wright report is directly tailored to the property in question, within its environment and locality. Given the adopted market rent as assessed in the Lewis Wright report, which is $900.00 per week, I find $900.00 per week would likely be market rent for this property. In taking this approach, I am minded that the report is from an independent registered valuer. In my view, considerable weight must be placed on the valuer’s opinion given the nature of his qualifications.

Does the rent set by the landlord exceed the market rate by a substantial amount?

As the RTA does not provide a definition of the words “substantial amount”, I apply the ordinary meaning to those words as defined in the Oxford Dictionary of English as follows:
Of considerable importance, size or worth: a substantial amount of cash...important in material or social terms; wealthy: a substantial Devon family. 2...3 real and tangible rather than imaginary...
As set out above, I consider the market rental for this property would be $900.00 per week, which is what the landlord currently charges for rent of the property. As such, I find the rent set by the landlord currently of $900.00 per week does not exceed the market rate by a substantial amount.

What rent should be set for the property?

Given I have found the rent currently set by the landlord for the property of $900.00 per week does not exceed the market rate by a substantial amount, the Tribunal determines that rent should be set at the current market rate of $900.00 per week for the property.
As current rent of $900.00 per week is the same as the market rent as determined by the Tribunal, the tenant’s market rent claim is dismissed. Landlord’s claims Termination/possession and rent arrears
The landlord has applied for termination and possession and for rent arrears. In their original application, the landlord applied for termination based on section 56(1)(a) RTA, in that the tenant had not remedied her breach of not paying the rent. At the hearing, the landlord confirmed they still seek termination and possession of the property, but on the basis that the tenant is more than 21 days in arrears, pursuant to section 55(1)(a) RTA.
The landlord provided rent records to 19 November 2024. The amount showing on the rent summary provided for the landlord as owing to 19 November 2024 was $1,615.00. Both parties agreed the correct amount of rent arrears owing to 19 November 2024 is $1,350.00. The difference in amounts was due to a separate agreement between the parties about compensation for a tank of water, which has been sorted out between the parties.
The tenant said that, at the first hearing she understood and agreed that she had to pay the rent arrears owing to the landlord of $1,350.00. However, at the second hearing, the tenant still had not paid the rent arrears owing. I note from the rent summary that, other than this amount of $1,350.00 withheld by the tenant as payment for the trellis and plants for the property, the tenant has regularly paid rent. The parties did not dispute this.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The tenant has breached her obligations by not paying $1,350.00 in rent, withholding this amount as she paid for the trellis and plants for the property.
The landlord served 14-day notices on the tenant dated 3 April 2024, 8 April 2024 and 26 April 2024, and the tenant did not remedy the breach within the required period.
I find it would not be inequitable to refuse to terminate the tenancy, however, as the tenant’s breach of not paying this amount of rent related to what she believed was a set-off claim, and because no other breaches of the Tenancy Agreement or the RTA are alleged by the landlord as against the tenant. Equitable set-off
Woodfall on Landlord and Tenant (2000 edition), paragraph 7.114, says that a crossclaim may be set-off against a claim for rent, even if it is unliquidated, provided that it arises under the lease itself, or directly from the relation of landlord and tenant, or out of an agreement for lease.
An equitable set-off is a defence to a claim arising from the tenancy agreement, directly from the landlord/tenant relationship or with a sufficiently close connection to the tenancy agreement. 3
Equitable set-off applies to residential tenancies. 4
Before termination of a tenancy for rent arrears (section 55(1) RTA), the Tribunal should consider whether an equitable set-off raised by the tenant might reduce rent arrears. 5
It is clear from the evidence of the tenant only withholding the same exact amount she initially submitted for her claim for the trellis and plants, $1,350.00, over several months, that she believed this was a set-off against rent she owed.
New Zealand Courts have held that the Tribunal should determine both the landlord’s claim and the tenant’s counterclaim before determining whether an order should be made under section 55. 6
I have determined the tenant’s claim for compensation, as amended by her at the second hearing, and have awarded the tenant $970.29 for her compensation claim for the trellis, and a further $26.00 for plants, to which the parties had agreed, for a total of $996.29. This is to be set off against the $1,350.00 that the tenant owes the landlord in rent, for a balance of $353.71 owing in rent by the tenant to the landlord to 19 November 2024. 3 Grant v NZMC Ltd [1989] 1 NZLR 8 (CA); Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 (CA) 4 O’Shea v Brown (HC Auckland, AP110-PL01, 14 December 2001 5 See O’Shea v Brown above. 66 High Court in O’Shea v Brown above, at paragraph 17.
Section 55(1)(a) RTA provides that the Tribunal shall terminate the tenancy when the tenant is more than 21 days in arrears. Weekly rent is $900.00 for the property. The net amount of $353.71 that I have found is owing by the tenant for rent arrears to 19 November 2024, is not more than 21 days in arrears. Therefore, the landlord’s claim for termination and possession is dismissed. Filing fees
As both parties have had some success with their claims, I do not award reimbursement of the filing fee to either party.

Tenancy Tribunal case 4916374 — Rent arrears at 50 Murphy Road, Wainui, Gisborne 4010

Tenancy Tribunal case 4916374 — Rent arrears at 50 Murphy Road, Wainui, Gisborne 4010

Order

Reasons

What would a market rent be for these premises?

Does the rent set by the landlord exceed the market rate by a substantial amount?

What rent should be set for the property?

Should the tenancy be terminated?

Property management

Order

Reasons

What would a market rent be for these premises?

Does the rent set by the landlord exceed the market rate by a substantial amount?

What rent should be set for the property?

Should the tenancy be terminated?

Property management