Published tribunal order
Tenancy Tribunal case 4936033 — Property damage
Decided 4 Feb 2025 · Published 4 Feb 2025 · Application 4936033
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- Shelter Realty Limited Linda Cheng must pay [The tenant/s] $550.25 immediately, as calculated in table below:
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- The tenant has applied for compensation, to set aside a 14-day notice as retaliatory, and a market rent assessment.
- The landlord has made a cross application for termination due to breach of a 14-day notice, a claim for compensation for window repairs and disputes all tenant claims. Background
- The tenancy commenced on 12 May 2020. The tenancy agreement includes a ‘no pets’ clause that specifically provides that the only pets allowed at the property are cats.
- The tenant houses around 6 chickens at the property and has done so since December 2023. The chickens reside in a caged off section in the back yard.
- A routine property inspection by the landlord on 26 March 2024 recorded within the comment section “chicken in the back yard” [sic], however no concerns were raised by the landlord at that time.
- The tenant submits the problems started in the morning of 13 June 2024, when she arrived home to a broken window, and both emailed and phoned the property manager asking for the window to be urgently secured due to predicted storm weather that same evening. Evidence of weather reports has been provided by the tenant, however the landlord disputes that the work was urgent.
- The tenant provided a quote for someone to secure the window. The property manager visited the property and advised that the quote provided was too expensive, and the owner would not approve. Instead, they would organise a different contractor, but it probably would not be fixed that same day due to difficulty in arranging a contractor at short notice. A discussion ensued between the parties where the landlord suggested that the tenant’s chickens had caused the break, whereas the tenant was of the view that the break was caused by falling vegetation from large tree fronds common at the property.
- By 5pm the tenant still had not heard from the landlord, so arranged and paid for a local builder to secure the window, as by that stage the wind was increasing, and the tenant was concerned about further damage to both the window and interior. The invoice records that the work was to make a broken lower pane window wind and weather safe, due to a severe storm weather warning.
- The tenant did not hear from the property manager again until later that week when she confirmed that a contractor was scheduled to repair the window the following week.
- The tenant claims against the landlord for $523.25 for the costs incurred in securing the window.
- On 14 June 2024, one day after the tenant sought to have the window secured, the landlord issued a 14-day notice to the tenant to remove the chickens. The notice was issued on the basis that the tenancy agreement stated that pets were not allowed on the rental premises, inside or out. It required that the chickens be removed by 28 June 2024. The tenant submits that this notice was retaliatory and in response to her seeking to have the window secured by the landlord.
- The parties entered discussions to try and resolve matters, including the on 21 June 2024 the tenant requesting permission to keep the chickens and an amendment to the tenancy agreement (with caveats including that they be housed outside and, in an enclosure). The tenant also sought clarification on whether an earlier window break repair had included safety glass in the repair as required by NZS4223.3:2016 (standard relating to low level glazing and unimpeded path of travel).
- On the same day, the landlord advised that they did not approve the request by the tenant to keep the chickens and amend the tenancy agreement. The landlord also advised that he did not want to replace the broken glass with safety glass. When the tenant asked for reasons on the chickens being declined, the landlord simply replied that they wanted to keep to the original tenancy agreement.
- On 10 July 2024 the landlord advised that the tenant could keep chickens on the property, if the tenant was willing to pay an additional $50.00 a week.
- On 6 September 2024 the tenant filed this application with the Tenancy Tribunal. No pets clause
- The landlord’s position is that the tenant has breached the ‘no pets’ clause in the tenancy agreement. The difficulty for the landlord is that the no pets clause is not enforceable.
- Section 11 of the Residential Tenancies Act (RTA) applies, that provision holds in full: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
- In short, this provision confirms that a landlord cannot enforce any provision in the tenancy agreement that is inconsistent with the RTA unless approved by the Tribunal. Furthermore, a tenant cannot by law waive any rights they have available under the RTA, meaning a clause in a tenancy agreement which limits a right, cannot be waived by the tenant.
- There is no provision in the RTA which prohibits a tenant from having pets in a tenancy. Neither is there any provision that would allow pets to be prohibited, even by agreement.
- There is instead a statutory right in the RTA for a tenant to have quiet enjoyment of the premises (section 38).
- The word “quiet” is used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”: Kenny v Preen [1963] 1 QB 499. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
- The principle of quiet enjoyment means that the tenant can live in the premises how they wish to live, and unless what they are doing is unlawful in some way, it is not for the landlord to interfere with that right.
- However, the right to quiet enjoyment is not absolute, because the RTA does bring in some limitations. For example, with notice a landlord can enter the premises for inspections or undertake maintenance. But there is no such limitation in the RTA around a landlord being able to preclude the tenant from having pets.
- Considering the tenants statutory right to quiet enjoyment of the premises, I can see no compelling reason to permit the ‘no pets’ clause to be enforced. 14-day Notice
- Section 56 of the RTA states that on an application the Tribunal may make an order terminating a tenancy if the Tribunal is satisfied that: The party has committed a breach of any of the provisions of the tenancy agreement; appropriate notice was given (see section 56(1)(b)) and the breach is of such a nature or an extent that it would be inequitable to refuse to make an order terminating the tenancy.
- As I have found that the no pets clause is unenforceable, and it is the no pets clause for which a 14-day notice has been issued, it follows that it would be inequitable to terminate the tenancy.
- I therefore have not considered whether the notice was retaliatory, however note that section 54 of the RTA (Tribunal may declare retaliatory notice of no effect) is limited to notices terminating the tenancy, rather than 14-day notices for breaches of the tenancy agreement or RTA.
- The claim for termination of the tenancy pursuant to s56 of the RTA is dismissed. Window repair costs
- The landlord claims for costs of two window repairs between 2023 and 2024 totalling $483.00. The tenant claims for the cost to secure the window in 2024 and amounting to $523.25.
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- I accept the tenant’s evidence that the window needed to be secured and could not wait. Especially when considering the significant weather events Auckland had faced prior to the request. The tenant had real concerns to mitigate possible damage to the property.
- The landlord has not proven that the tenant, or the tenant’s pets caused the damage either carelessly or intentionally. The chickens were in their fenced area, and it is not clear to me how a chicken would have broken the window.
- I find it more likely than not, that the break was caused by vegetation at the property and possibly by the lower than recommended quality glass being installed at this location.
- As a result, I find that the landlord must compensate the tenant for the cost to secure the window of $523.25.
- The amount ordered is proved.
- The landlord has not provided any evidence on how the tenant carelessly or intentionally caused the earlier two window repairs between 2023 and 2024 and therefore the landlord’s claim for the cost of these window repairs is dismissed. Market rent assessment
- The property is a four-bedroom, two-bathroom property in Te Atatu Peninsula. Since the commencement of the tenancy there have been several rent increases.
- Based on the rental summary provided by the landlord, on 9 November 2023 the rent increased from $685.00 to $750.00 and on 14 November 2024 the rent increased to $850.00.
- At the hearing, the landlord advised that the recent increase of $100.00 was due to an additional $50.00 being added for the chickens, despite no written agreement to that arrangement. At the hearing there was also some reference to informal discussions between the parties that the rent would only be increasing to $800.00 instead. Although I accept this is not clear in the correspondence.
- With respect to the market rent assessment request, the relevant provision of the Residential Tenancies Act 1986 (RTA) is section 25. That provision holds: Market rent (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 the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (2)For the purposes of this 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.
- Accordingly, the Tribunal may order a reduction of the rent to an amount in line with market rent if the rent for the tenancy exceeds the market rent by a substantial amount. ‘Market rent’ is the rent that, a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay taking into consideration the general level or rents for comparable tenancies or comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
- The questions I must determine is firstly what a market rate of rent would be for these premises, secondly whether the rent increase is substantially above the market rate, and if so, thirdly, what the rent should be?
- Evidence has been provided by the parties on other rentals in the area for what is submitted to be similar properties. The example properties provided range in rent from around $640.00 to $800.00 weekly. It is of course difficult to assess the relevance of these without a comprehensive comparison on quality, land area, bedrooms etc.
- Tenancy Services provides a market rent tool (https://www.tenancy.govt.nz/rent-bond-and-bills/market-rent), and the median rent for a similar size property in this area is $800.00. Based on the photographs provided, it is likely that the house would be of a median standard.
- I therefore find that a rent of $800.00 is appropriate. This also reflects my findings above on the no pets clause being unenforceable and the later increase from $800.00 to $850.00 potentially being as a result of the chickens.
- The new rent of $800.00 should take effect from the date of the increase from $750.00 to $850.00, being 14 November 2024. Summary
- All other claims are dismissed.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. R Harvey-Lane 04 February 2025