What was the outcome of Tenancy Tribunal case 4918233?

The tribunal order states: Chas Davy & Sons Limited must pay Nyasha Michelle Davy and Stephen

How much money was awarded in case 4918233?

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 4918233?

The primary dispute was 14-day notice. Related themes: Healthy homes, Mould & damp.

Where can I read the official tribunal order for case 4918233?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10743366-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4918233?

The tribunal order states: Chas Davy & Sons Limited must pay Nyasha Michelle Davy and Stephen

How much money was awarded in case 4918233?

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 4918233?

The primary dispute was 14-day notice. Related themes: Healthy homes, Mould & damp.

Where can I read the official tribunal order for case 4918233?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10743366-Tribunal_Order.pdf.

26 Alamein Avenue, Belmont, Auckland 0622 Tenancy Tribunal Case 4918233 — 14-day notice

Order

Chas Davy & Sons Limited must pay Nyasha Michelle Davy and Stephen Jenkins, the sum of $1,620.00, calculated as follows: Rent overpayment$1,120.00 Compensation for maintenance$500.00 Total to be paid by landlord to tenant$1,620.00
Chas Davy & Sons Limited must undertake the following work at the tenancy, no later than by 23 September 2024: a. Remove tree b. Remove old washing line c. Remove mould in bathroom d. Install ground moisture barrier e. Remove items from garage f. Plane laundry window

Reasons

The Tribunal must consider an application filed by the tenant against the landlord.
Both parties appeared at the hearing along with their support persons and witnesses.

BACKGROUND

The landlord is Chas Davy & Sons Limited.
There were two separate tenancies. The first tenancy commenced with two co-tenants, that is Nyasha Gambiza (Davy) and Justin Davy, commencing on 30 December 2021. Justin Davy passed away on 20 April 2023.
A second tenancy agreement was entered into with Nyasha Davy and Stephen Jenkins as the tenants. A standard form tenancy agreement was used. This tenancy commenced on 13 June 2024.
It is clear that things have not gone well at the tenancy, in relation to the tenant’s concerns about various things at the tenancy.
On 18 June 2024 the tenant filed this application with the Tribunal.
On 1 July 2024 the tenant issued a 14-day notice to remedy the following: a. The washing line, blown down in a storm. b. Replacing curtains (which the tenant states are Healthy Homes requirement). c. Remove items stored in the garage.
I note here that it is clear there is a significant overlay of issues that have arisen in a domestic context. In that regard the ‘original tenancy’ was with Justin Davy, who is the landlord’s son. Nyasha and Justin married, but about three weeks following the marriage Justin passed away. Justin and Nyasha had a child who is therefore the landlord’s grandchild. The landlord lives next door to the tenancy.
While there is an inescapable domestic overlay in the relationship between the parties, I am satisfied there is also a residential tenancy falling within the Residential Tenancies Act 1986 (RTA). Some arrangements, such as tenancies with family members, are excluded tenancies under section 5 of the Residential Tenancies Act 1986 (RTA), in particular 5(1)(n) in this case. However the parties can under section 8 contract back into the RTA when the tenancy would otherwise be an excluded tenancy. That is what has occurred here, given the parties have used a standard form tenancy agreement, which confirms that the RTA applies.

WITNESS EVIDENCE

Saul Hoeksema

Mr Hoeksema states that he has been to the house, and considers that it is in a better state than it has, but considers otherwise the premises to be older and in some respects substandard. The premises were cold, and did not retain heat as houses of that age often would not.
The witness considers that the tenant’s children have been affected by the interior of the house because they have had various cold-like illnesses.
Mr Hoeksema advised that the joinery would be difficult to open, and that he had raised this with the landlord. In cross-examination, Mr Davy challenged Mr Hoeksema on the basis that he could not recall the witness raising these complaints, but Mr Hoeksema maintained that this had been raised with the landlord.
Mr Hoeksema states there was mould in the bathroom, which he considered was caused by moisture getting under the shower and behind the wall. Godfrey Gambiza
Mr Gambiza attended the hearing where he gave evidence from a written statement on behalf of the landlord.
Mr Gambiza advised that the tenant, Ms Davy is his daughter.
The witness did not raise any concerns about the standard of the house.
In cross examination the witness confirmed that he did not notice if there were doors on the kitchen or issues with the bathroom, only that the house was unclean.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The 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 likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

WORK ORDERS

The tenant seeks a range of work orders, which are orders that the tenant or landlord must undertake specific work. As I will set out below, the landlord has agreed to do most of the work requested, so this is ordered by consent. However I cannot make some orders which are not consented to by the landlord, and as I will explain, do not represent a breach for which I could make a work order.
Tree. The tenant seeks to have the tree trimmed which is overhanging the deck. Mr Davy advised that he has no objection to the tree being removed, he is just waiting on the landscaper to be available to do this work. The landlord consents to this order being made.
Washing line. The tenant states that the old washing line should be removed. Mr Davy is also in agreement for this order being made.
Dryer to be ducted. The tenant wants the dryer duct to be installed into an exterior opening rather than needing to put the duct out the window. The landlord is reluctant to do this work, because there are different size ducts that may need to be used depending on the dryer used. The landlord does not support this work. As I explained, I cannot make this order, because it is not consented to by the landlord, and because I know of no legal obligation that the dryer be ducted outside the dwelling, so there is no breach.
Mould in bathroom. The tenant seeks to have the mould in the bathroom walls and ceiling addressed. The landlord is agreeable to do this work also.
Install moisture barrier. The tenant seeks a ground moisture barrier to be installed. The landlord agrees to do this work
Insulation. The tenant says the insulation in the ceiling is thin. The landlord states that the ceiling insulation was installed around 2019 and the landlord believes meets the legal criteria. In short the landlord believes there is complaint insulation. As I advised the tenants at the hearing, I cannot make this order, because the tenants have not proven to me that there is a breach on the part of the landlord with the insulation provided.
Remove items from the garage. The tenant says that there are items stored for the landlord in the garage, particular mention was made of a mattress and bed. The landlord is happy for those items or any other personal items removed.
Removal of wood. The tenant says that when trees are being trimmed, the wood from that is being left on the premises. The landlord says that the premises are on a sloping section, and the wood that is removed is used to augment the retaining for these banks. On balance I decline to make an order for the removal of the wood. I accept what the landlord says, that the wood is intended for support of the retaining wall, which is a legitimate purpose. As I noted today, the landlord is responsible for maintenance and that includes how maintenance to the premises is undertaken.
Laundry window. The tenant states that the window in the laundry needs to be ‘shaved’ so it can open properly. Mr Davy agrees to do that work.

RENT COMPENSATION

The tenant seeks to have rent compensation of one-third of the rent she has paid over the last two years refunded. In particular, there being an absence of heating for two years, a non-working stove in the kitchen, rot to the shower wall, the premises not meeting HHS standard, and her children have been unwell.
The tenant says that the gas heater was not working, and she disputes that it was fixed during the tenancy. The tenant referred to an email from the repairer who advised that they were not wanting to reinstall the heater.
The landlord states that at some stage the heater has been detached from the wall, and that a registered gasfitter had confirmed the heater was compliant (see invoice from May 2024). More recently a heat pump has been installed.
In terms of the shower, the tenant says that the inside of the shower was wood and rotten, so water would go inside the wall, further the step was rotten and the door fell off because of that.
The landlord states that the door to the shower was removed by Justin Davy (tenant), but confirmed that the shower has now been replaced.
The landlord explained what he has done at the premises, and some of the challenges he has faced such as with getting the shower replaced, and with the tenant not giving him permission to enter the premises at times. The landlord states that he has not wished any harm on the tenants, noting that one of the children in the house is his granddaughter.
At the hearing I raised with the tenant whether she had provided the landlord with a notice to remedy the heater for example, noting there was no such notice on file 1 . The tenant found a communication where various problems were raised. While it was not a formal notice as such, it would have brought some matters to the landlord’s attention.
In terms of the kitchen, the tenant says that the kitchen cupboards were rotten and not fixed, and the stove did not have all of the gas burners working. The tenant says that this was raised with the landlord, but the landlord did not get this work finished.
Again the landlord referred to the gas fitter invoice from May 2024 where the stove was fixed. The landlord considers that the stove has been damaged since then. The landlord refutes that the stove has never been working.
The landlord states that he has been blocked from going into the tenancy. Analysis
Section 45 of the RTA requires that the landlord maintain the tenancy, taking into account the age and character of the premises, and the period for which it would likely continue to be used for residential purposes.
Section 40 sets out the tenant’s responsibilities, and that includes notifying the landlord when repairs or maintenance are needed.
Section 49 requires that a party mitigate their loss. In the context of this claim, this means that the tenant must take any necessary steps to limit the loss she incurred from the landlord’s breach, and that would include seeking orders from the Tribunal in less than two year period that occurred here.
But in terms of maintenance, the only area I am satisfied that the tenant has established a breach is with the shower. I consider that the landlord should have addressed the shower rot much sooner. The rot was obvious and would have been long-standing. I consider compensation should be provided for that, 1 There was one 14 day notice on the file, but not in relation to the matters raised in the compensation claim. as the tenant was paying rent for a shower that would be watertight and maintained, and she was not getting that.
The evidence also confirms there was no ground moisture barrier. This is an HHS requirement that would have applied during the first tenancy.
The tenant has not proven that the mould would be more than the environmental mould commonly seen in bathrooms.
In relation to the heater, given it was a flued gas heater, it could have been compliant with the HHS. There would however have been a minimum heat output required, I am not aware of what the heater output would be to say whether it would or would not have met the heating needs. But in terms of maintenance, I am not persuaded there is sufficient evidence to show this was not working for a two-year period, the evidence is equivocal on that. It is the tenant who must prove it was not working, and not reasonably maintained.
Similarly, I am not persuaded that there was a longstanding issue with the kitchen or cooker. There is evidence that the landlord had a gasfitter to fix it when it broke, which is confirmed in the May 2024 invoice. The tenant has not established this claim.
In relation to the health of the tenant’s children, while some medical letters are on file, they fall well short of the necessary medicolegal standard to link any particular diagnosed condition with a defect in the house. Again it is the tenant who must prove her claim.
It may be that the landlord could have acted sooner with some maintenance, but in the circumstances where it is only the ground moisture barrier and shower that are established as breaches of the landlord’s maintenance and HHS requirements, I consider compensation of $500.00 would be fair for those breaches.

RENT INCREASE

The tenant says that she was given an illegal rent increase notice for an $80.00 per week increase. The tenant says that this increase was not correctly notified, with the rent increase notice being given verbally.
Mr Davy was not able to point to a formal written notice, and did indicate that at the time there was a good relationship with the tenant, and the agreement to increase the rent may have been verbal. Analysis
Based on the information available, it looks like the rent went up $80.00 per week from 6 March 2024. It seems that the increase did not comply with the legal obligations on the landlord, set out in section 24 of the RTA. That requires that any increase in rent be notified in writing, stating the amount of the increase, and when it was to apply from (with 60 days minimum notice). Mr Davy seems to accept that this initial increase did not meet that criteria.
However, it is also the case that on 13 June 2024 there was the new tenancy agreement entered into, which did record the rent due as $680.00 per week, for a tenancy commencing that same day. So the rent was lawfully increased from 13 June 2024.
What this means is that the tenant was not liable to pay the $80 per week between 6 March 2024 and 12 June 2024, which is 98 days, or 14 weeks. The end result is that the tenant has overpaid the rent during that period to the sum of $1,120.00 which must now be repaid.

Tenancy Tribunal case 4918233 — 14-day notice at 26 Alamein Avenue, Belmont, Auckland 0622

Tenancy Tribunal case 4918233 — 14-day notice at 26 Alamein Avenue, Belmont, Auckland 0622

Order

Reasons

BACKGROUND

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

WORK ORDERS

RENT COMPENSATION

RENT INCREASE

Property management

Order

Reasons

BACKGROUND

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

WORK ORDERS

RENT COMPENSATION

RENT INCREASE

Property management