What was Tenancy Tribunal case 4925917 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4925917?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4925917?

The primary dispute was Mould & damp. Related themes: State of repair, Harassment, Leaks.

Where can I read the official tribunal order for case 4925917?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11157504-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4925917 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4925917?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4925917?

The primary dispute was Mould & damp. Related themes: State of repair, Harassment, Leaks.

Where can I read the official tribunal order for case 4925917?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11157504-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4925917 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The tenant claims are dismissed.

Reasons

Both parties attended the hearing.
The Tribunal must deal with the tenant’s remaining claims being: a. Compensation $500 for failure to maintain a dishwasher b. Compensation $2000 for failure to maintain a roof c. Compensation $2000 for failure to maintain the property allowing mould d. Compensation $500 for failure to maintain a door handle e. Compensation for $2000 - Breach of quiet enjoyment Burden of proof
A party who brings a claim to the Tenancy Tribunal must prove that their version of events took place on the balance of probabilities (more likely than not). Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, where Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
Evidence and submissions in this case were lengthy. While it has not all been referred to in this decision it has been considered. Failure to maintain claims
Under s 45(1)(b) Residential Tenancies Act 1986 (RTA), a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
It is well settled that, the landlord’s obligation under s45 RTA is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. A tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so. Section 40 of the RTA sets out the tenant’s responsibilities, and that includes an obligation to notify the landlord, as soon as possible after the discovery of the need for repairs to the premises.
The RTA also provides a mechanism for tenants to raise work required at the premises more formally with the landlord, and if the landlord does not comply with that notice, to escalate the matter to the Tenancy Tribunal for orders. In particular tenants are able to provide the landlord with a breach notice (a 14-day notice) and if work is not completed in a timely way, tenants can seek a work order from the Tenancy Tribunal which would require the landlord to remedy the breach.
That is consistent with section 49 RTA which places a duty to mitigate on the parties, that provision holds: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, 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. Dishwasher
The tenant says that the landlord has not maintained a dishwasher. The tenants say that they contacted the landlord on 11 March 2024 to tell them about a problem with their dishwasher. Evidence filed show that they reported an error code.
The landlord says that maintenance was impeded by Mr O’Donnell’s threatening behaviour.
I must therefore consider this background: a. A tradesperson, who was attending the property on behalf of the landlord on a different issue, told the landlord they would not go to the property again. The details from the tradesperson are set out in a letter dated 12 December 2023 provided to the landlord from the tradesperson. b. This letter provided to the Tribunal sets out that the tradesperson considered the tenant to be very argumentative about the landlord and about how the work would be carried out. The letter records the tenant as being abusive and that the tradesperson felt unsafe and intimidated. c. The landlord also says that a concern with the behaviour of Mr O’Donnell also arose as a result of a property inspection on 5 March 2024. I heard from the landlord how at this inspection the property manager had raised the issue relating to the tradesperson. The property manager concerned says that at this inspection Mr O’Donnell followed her from room to room constantly swearing and ranting. The property manager says she was fearful and she had not experienced this in her career. The level of aggression made her ‘go to ground’ and made her upset and nervous. d. The tenant says he was not threatening to the tradesperson or at the inspection. e. The tenant says that when visiting the tradesman expressed that he was worried about being paid and that Mr O’Donnell had then said that the landlord had “milked” tenants during Covid. Mr O’Donnell says that he thought that tradesperson felt uncomfortable with him saying this. The landlord says this is not something it was aware of and was flummoxed by the point being raised. f. The tenant questions why their tenancy was renewed if they were threatening and why they received no anti-social behaviour notice and a police report was not made. The landlord says the renewal was simply a fixed term turning periodic. This was standard and the landlord could not simply terminate a tenancy at the end of a fixed term.
The landlord’s reply about fixing the dishwasher came on 12 March 2024. In that reply they stated that they were concerned about Mr O’Donnell’s behaviour and threats including to the tradesman. The reply stated that the landlord would only engage a tradesperson if Mr O’Donnell was not at the property.
On 19 March 2024 Mr O’Donnell sent a text message saying that there was no engaging a tradesperson on conditions, “if not, see you in tenancy”. The reply sent by the landlord was that if there was an assurance the tradesman would be able to carry out the repair peacefully then “I will arrange it”. A further reference was made to Mr O’Donnell’s threats and language and a request was made for Ms O’Donnell to call the landlord for a contractor to be arranged.
The text back said that the dealings were to be with Mr O’Donnell. Text messages then escalated but later that day, by email, the landlord reported that the handyman would not attend due to the tenant’s past aggressive behaviour. However, the landlord offered the solution of the tenant getting their own handyperson to quote the work and then the landlord approving this work to be done.
The tenant thinks the landlord was avoiding sending a tradesperson because of the comments he had made about the landlord to the tradesperson before.
On the same day, 19 March 2024, the landlord’s offered a meeting to resolve the relationship issues and the dishwasher. It appears there was no response to that offer.
I heard from both parties how at different times different solutions were proposed: it would be fixed if Mr O’Donnell was not there, if he did not talk to the tradesperson, if the tradesperson came with the property manager, if two trades people came (the tenant paying for the time of the second tradesperson), or if the tenant arranged their own tradesperson.
On 11 June 2024 an inspection took place and on the same day a further letter was sent to the tenants by the landlord, and this also included reference to the dishwasher. It refers to the tenant being able to arrange their own tradesperson and sending the invoice to the landlord for payment. It refers again to the landlord’s tradesperson not attending due to tenant behaviour.
I was able to view a recording of part of this inspection which was provided by the tenant. The tenant was of the view there had been no threats made. However, in the light of what is shown in the recording I find it reasonable to describe Mr O’Donnell’s behaviour at this inspection as intimidating.
On 26 June 2024 the landlord sent a text message telling the tenant she would arrange a contractor and she would be accompanying them. The reply from the tenant was that it was ‘too late’ as someone had been arranged to look at it that Friday. The tenant referred to sending the bill to the landlord. The landlord replied by saying for the account to be forwarded.
The landlord provided evidence of a work order showing that they had asked a tradesperson to come that day but say they did not go ahead because the tenant said that they had it in control.
The tenants say that they tried to get a tradesperson to fix the dishwasher, but the tradesperson rang back and said they were not coming. It was the same tradesperson the landlord had been in touch with. The tenant says they tried one tradesperson but then did not try anyone further.
An email was sent by the tenant to the landlord on 1 August 2024 referring to the landlord picking and choosing what laws they follow. They refer to the landlord sending someone but then refer to the fact that the landlord would attend with a tradesperson and then a change to two tradespeople. The tenant expresses the view that this is because the landlord is keeping up the “charade” of the tenant being abusive, and they will not put themselves in a position whereby they can be defamed further. The tenants say they wanted to be present when the tradesperson came because they did not want the landlord to say bad things about them.
An inspection also took place on 9 September 2024. The tenant provided a recording of part of this inspection. The landlord asks if the dishwasher has been fixed and the tenant says, “No. It’s going to tenancy you already know that we’ll see you in a week’s time”.
I accept that the tenants have established that there has been a failure to maintain. Leaving a dishwasher unfixed for the period concerned is not reasonable.
However, I decline to award compensation because when seeking compensation, a tenant must mitigate their loss. I find the tenant has not done this for the following reasons: a. This was not the case of the landlord simply refusing to engage with the fixing of the dishwasher. b. I accept that the landlords had genuine concerns about the behaviour of Mr O’Donnell following the letter they had received from the tradesperson. Also, I accept that the landlord (property manager) herself likely experienced behaviour that she says made her concerned. This is supported by the recording presented to me of the inspection on 11 June. Mr O’Donnell himself acknowledged the tradesperson seemed uncomfortable. c. The landlord presented multiple alternative options to the tenant to resolve the issue. d. In all the circumstances, I find that the variety of solutions offered to the tenants to be reasonable. e. From the outset, the landlord makes it clear that a tradesperson would come if Mr O Donnell temporarily left the property. I find this reasonable in all the circumstances. At this stage the probative evidence shows that in these circumstances the tradesperson would have come alone, so the tenant’s concern that they needed to be at the property to stop the property manager talking badly about them to the tradesperson carries little, if any, weight here. I do not find this concern to be genuine in any event. A landlord can always talk to their chosen trades on other occasions without the tenant present. f. There was also an offer for the tradesperson to come if an assurance was made that he could work in peacefully (or, as expressed at the hearing, does not talk to the tradesperson). I find that, in the circumstances, to be reasonable. g. The offer the property manager would attend with the tradesperson was also, in the circumstances, reasonable. h. Further, the tenants could have arranged their own tradesperson. They say they did try but then that tradesperson cancelled. There is no probative evidence why that tradesperson cancelled, although the tenants say it was because of the landlord. The landlord provided evidence that that the same business was willing to come to the property in June following discussions with the landlord. Therefore, I find it unlikely that same tradesperson cancelled as a result of discussions with the landlord about the tenant behaviour. In any event, given the issue concerned, it would not have been onerous for the tenant to have located an alternative tradesperson. The problem was not major, and the landlord had offered to pay for the work. i. It is clear from text messages that from June the landlord found a willing tradesperson who would attend and would have sent them. The tenant directly stopped this by telling the landlord they were too late. The tenant therefore expressly prevented the fix from being undertaken at this stage. j. It is clear from the inspection recording made in September, when they told the landlord the dishwasher was still not fixed (despite the previous text saying it was being fixed) that the tenants were then waiting for a decision from the Tribunal.
Because the tenant has not mitigated their loss, I decline to award compensation for a failure to maintain the dishwasher and the application is dismissed. Maintaining the roof and mould
The tenant says that during the tenancy the roof needed fixing because of a leak during the tenancy in 2022. The landlord arranged someone to come and fix it when it was first reported but the tenant assumes that, due to the mould that they say they have experienced, there is still a leak.
The tenant says that they told the landlord about mould many times at inspections and on calls.
Videos were provided that included showing mould behind the dishwasher. It also showed the ceilings in a few rooms and HRV system (one room having more mould around the HRV than the other). There was also a video of an exterior corner of the property but the mould that the tenant says is around the windows here is not clear. The tenant says these videos were taken just prior to the hearing.
The tenant also says that certain doors do not close due to the leak. They say they could not run the heat pump or HRV system. They say they assume the HRV system is full of mould as a smell comes out of it. It was not clear to me on the evidence presented what the problem with the heat pump was, if any. The tenant says they could not run it.
The landlord says that the initial roof leak was dealt with urgently. The landlord says that roof leaks in properties they manage are dealt with quickly. I was provided with a copy of the work order and invoice for the work done and I accept this was attended to promptly.
The landlord says that the tenant was specifically asked about the roof at the next inspection and the tenant said that it was fine. As far as the property manager was concerned, she understood that the position was remedied after the roofer had been in November 2022.
On the basis of the above, I am therefore not satisfied that the tenant has proven that there has been a failure to maintain in respect of a leaking roof.
The landlord says that the tenant did not alert the landlord anything about a mould issue. The first time the landlord noticed an issue with mould was at the inspection in September 2024. The tenant says that before that they would clean the mould, so it was not there for the landlord to see.
Following the inspection in September a 14-day notice was issued by the landlord to the tenant, for the tenant to clean the mould and the landlord explained that they had they issued work orders for the HRV system to be serviced because it had been turned off and the tenant was required to ventilate and for the heat pump to be serviced.
I have considered the position very carefully based on the evidence before me I am not satisfied that the tenant has established that there was an earlier issue with mould and that the tenant has not proven that the landlord was aware of the mould (or the issues they say relate to the mould) prior to the inspection in September 2024. This is after the tenant’s application was lodged. I am not satisfied that the landlord was alerted to the mould behind the dishwasher, nor would this have been seen unless the dishwasher was pulled out.
I am satisfied that the landlord’s response to the issue at this stage, when the mould was discovered, seeking to get the HRV system and the heat pump serviced and asking the tenant to clean the mould was reasonable at this stage to see if this resolved the mould issue.
The tenant’s application for failure to maintain in respect of mould is therefore dismissed. Door handle
The tenant’s say the landlord did not fix a door handle.
The landlord had sent a tradesperson who had reported to them that there was no issue to fix when he attended the property and looked at the handle in November 2023. He reported that he opened and closed the door with the handle several times but that there was nothing wrong with it.
I find the tenant has not sufficiently proven there has been a failure to maintain in relation to a door handle. Breach of quiet enjoyment
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The tenant says that the landlord breached their quiet enjoyment by text messages that were sent regarding gardening work.
In summary, in the messages the tenants were advised that the owner would be coming to the property but, the day before the visit, the tenant was sent a message asking if Monday would be okay if the weather was bad. The owner was planning on doing some tree work in the garden. The tenant replied it would not be OK and set out that they wanted to be there and that on Monday the tenant would be at work.
The reply from the landlord began “Gosh unfortunately the own the property and as long as they give the necessary notice they can come. They are just cutting some trees...” It went on to set out that they had no idea the tenant had taken a day off and that if the landlord wanted to come tomorrow then they can. The tenant replied with their point of view. The response was “wow such a different Linda to the one I see at inspections. Regardless these are the owners and if they wish to come they will and they can... this will happen with or without your co-operation”.
Further, the tenant also refers to an occasion where the landlord was sending messages about the dishwasher and the possibility of a meeting to discuss the tenancy. The tenant then asked for no more texts that day. The landlord did send one further text. It is this text that the tenant objects to.
I am not satisfied that any of these messages amount to a breach of quiet enjoyment of the tenant’s use of the premises.
While the tenant may have found the tone of the landlord here to be rude or unprofessional it does not amount to a breach of quiet enjoyment of the premises without interruption where a landlord is simply rude to the tenant, or where the parties dislike one another (Mcintosh v O’Malley [2022] NZTT 4325097, 4326905).
I am also not satisfied that the single text message, sent after the tenant’s request, in the context of the discussion that was taking place about the dishwasher and the management of the tenancy, interfered with the tenant’s quiet enjoyment of their use of the premises either. I find that the landlord here was attempting to engage with the tenant and manage the property.
The application for a breach of quiet enjoyment is dismissed. The parties
The tenant chose to bring this claim solely against the property management company rather than the property owner. I have referred them as the landlord throughout this decision for ease.
However, ultimately, I do not have to find whether the property management company is the landlord and therefore an appropriate party against which to bring this application because the tenant applications have been dismissed in any event. Suppression
Section 95A RTA provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The landlord seeks name suppression and has been wholly successful and so I award name suppression. The tenant does not seek name suppression, so I have not awarded this.

Tenancy Tribunal case 4925917 — Mould & damp

At a glance

Tenancy Tribunal case 4925917 — Mould & damp

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