What was Tenancy Tribunal case 4943715 about?

The tribunal order states: The landlords’ names and details are suppressed.

How much money was awarded in case 4943715?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4943715?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4943715?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10906826-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4943715 about?

The tribunal order states: The landlords’ names and details are suppressed.

How much money was awarded in case 4943715?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4943715?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4943715?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10906826-Tribunal_Order_Redacted.pdf.

609 Queen Street, Levin, Levin 5510 Tenancy Tribunal Case 4943715 — Mould & damp

Order

The landlords’ names and details are suppressed.
The tenants’ claims are dismissed.

Reasons

Both parties attended the hearing.
The landlords were represented by counsel. The tenant’s claims
The tenants’ application was for compensation and exemplary damages for the landlords’: a. Breach of the Healthy Homes Standards (“HHS”). See section 45(1)(bb) Residential Tenancies Act 1986 (“RTA”). b. Failure to comply with requirements in respect of buildings, health, and safety. See Regulations 14 and 15 Housing Improvement Regulations 1947 (“HIR”). c. Failure to maintain the premises in a reasonable state of repair. See section 45(1)(b) RTA. d. Breaching the tenants’ quiet enjoyment. See section 38 RTA. e. Issuing a retaliatory notice. See section 54 RTA. f. Contracting to contravene or evade provisions of the RTA. See section 137 RTA.
In addition, the tenants had applied for a work order. As the tenants are vacating the property and it is to be sold and not re-let, it was not necessary to consider this aspect of the tenants’ application. Standard of proof and evidence
In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, the tenants must establish with evidence that their claim is more likely than not. I have considered each of the claims bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding each claim, I have considered all the evidence presented, including oral testimony. I have weighed this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
Both parties have filed substantial amounts of evidence. It would be impractical to refer to every item of evidence produced by both parties. While I have not referred to all the evidence filed by the parties and presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, I have referred in this Order only to the most relevant or important evidence.
By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the necessary evidence. It is not the Tribunal’s responsibility to extract evidence.
Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the tenants’ application with this requirement in mind. The parties’ evidence
As noted, both parties filed substantial amounts of evidence: a total of nearly 900 pages in addition to that provided in a full day’s hearing. It is not practical to refer to all of either party’s evidence in this order. This Order therefore contains a summary of the most significant evidence and submissions in support or refutation of the tenants’ claims.
In support of the tenants’ claims, the tenants filed copies of: a. Photographs of mould in the bathroom and on the window-side of curtains and a blind. b. A Healthy Home Inspection dated 12 July 2024 (“the tenants’ HHS report’) c. A mould report by The Mould Doctor based on an inspection on 23 July 2024 (“the mould report”). d. A letter from a doctor dated 10 September 2024 (“the doctor’s letter”). e. A 14-day notice given to the landlord by email on 19 June 2024 (“the tenants’ notice”). f. Emails between the tenants and the landlords regarding complaints about the property from 17 December 2021 to the present, the majority being from 2024.
The tenants gave evidence at the hearing that: a. The property had smelled musty from the start of the tenancy. b. The bathroom was “tired”. Its ceiling had a crack in it in which mould grew. c. There were two layers of wallpaper in the bathroom that had been painted over. d. Mould was visible on the walls, around the bath, shower, toilet and in the grouting. e. Despite wiping and cleaning away the mould, it continued to reappear. f. The recurring presence of the mould has caused the tenants significant ill health throughout the tenancy. g. The issue was raised with the landlords’ property manager at each regular inspection and these complaints have been going on for two and a half to three years. h. The condensation on the windows caused mould on the back of curtains and a blind. The mould damage could not be fixed by cleaning or washing and so they were removed from the property. i. The property was recently visited by an infestation of ants who are attracted to moisture. j. The carpets were beyond their useable life and required replacement. k. The toilet cistern was mouldy and defective and required replacement from the start of the tenancy. This work was completed in 2022. l. The overflow from the header tank required fixing from the start of the tenancy. This also was completed by the landlords’ contractor. m. The only form of heating the tenants used during the tenancy was the heat pump in the hallway. n. The tenants chose in the winter to live in the bedrooms rather than the living areas of the house. o. Water comes over the guttering. p. There were two rotten areas of wood in the bathroom.
The tenants’ HHS report confirmed that the property was non-compliant with the HHS as follows: a. Drainage and guttering. The report confirms that all of the roof has gutters and downpipes catching the roof water, that they were in fair condition and discharge into the stormwater system. It reports that there is evidence of stormwater pooling/ponding around the site. It recommends removing foliage from around the house and clearing weeds and debris from the gutters. It notes a leak from a gutter allowing water to pool onto the path. b. There is no complying heat pump in the living room. c. Draught stopping around windows is required.
The tenants’ HHS report confirms that the property is compliant with the insulation and ventilation HHS.
The mould report’s findings conclude: a. “There are issues throughout the property that indicate the Property has not been maintained to a suitable standard. These include: i. Water leaking from gutters and water pooling on Footpath. ii. Debris in Gutters. iii. Insufficient heating in the Lounge. b. A significant amount of Mould in the bathroom including Rotten cladding and Mouldy paper, and several holes through Seratone. c. The Laboratory results from Air testing indicate that there is a problem with Mould spores in the Master bedroom with high levels of Aspergillus/Penicillium... d. There were also high Mould Spore levels in the Bathroom.”
The mould report’s Executive Summary states: a. “The high levels of Aspergillus/Penicillium indicate an urgent and significant mould problem in the master bedroom and potentially in other areas of the house. Specifically, 11,133 spores were found in the master bedroom, and 12000 in the bathroom. Additionally, 27 hyphal fragments were detected suggesting that the bedroom may not have been the source of the colony. In the bathroom, 693 hyphal structures were found, indicating significant mould growth. Immediate action should be undertaken to remedy.” b. “It is my Professional opinion that There are maintenance issues in the property that have allowed Mould to grow in areas of the home. Despite the tenant’s best efforts to keep the home clean and tidy, there is a problem with Mould throughout the property.” c. “As the tenant has Health issues that could be related to the cold, damp property...”
The author of the mould report and the tenan’’s HHS report gave evidence at the hearing in support of those reports. He noted: a. There was foliage around the property that needed trimming. b. There was a bad leak from the guttering and pooling in the gutter so that the gutters need cleaning out. c. There was no insulation over the manhole cover. d. There was no heating in the living room. e. The heat pump’s capacity was insufficient. f. There were gaps in the windows. g. The property needed “some TLC” and the “bathroom needs totally gutting out”. h. There were signs of ants and rot in the bathroom in two areas.
The doctor’s letter stated: “A recent Healthy Homes report has identified significant issues, including the presence of mould and a high load of Aspergillus in both the master bedroom and bathroom as well as a number of maintenance issues leading to this. These findings indicate that the property has not been maintained to the required standards, as stipulated under current Standards. The presence of mould and Aspergillus is particularly concerning as it poses potentially serious health risks. Eileen has experienced ill health, which I believe is likely attributable to the living conditions... Eileen and her family are seeking a resolution that ensures the property is safe and healthy to live in, as per the legal requirements.”
The tenants’ notice reads: “As you are well aware, the bathroom at [address] is in need of major renovation” and listed the following concerns: a. Mould behind the bath. b. Mould around the ceiling & skirting areas. c. Mould/rotten wood framing of shower. d. Wet areas need to be fitted with formica. e. Replastering of ceiling, walls, bath. f. Wooden window frames contain mould. g. Insufficient ventilation. h. Please ensure [the landlord] is meeting its obligations under the Residential Tenancies Act in regards to full compliance of the legislative requirements of the Healthy Homes Standards. i. Painting over mould and not replacing wet areas with the correct formica materials does not meet Healthy Homes Regulations.”
The landlords provided in evidence: a. A report from Clearview Property Care Limited dated 19 September 2024 (“the Clearview report”). b. A HHS report prepared by the landlord’s property manager dated 24 June 2024 (“the landlord’s HHS report”). c. A routine Inspection Report dated 6 August 2024 (“the Inspection Report”). d. Copies of routine inspection reports dated 10 January 2023, 4 April 2023, 6 July 2023, 26 September 2023, 30 April 2024 and 6 August 2024. e. A copy of its record of all requests for maintenance and its response throughout the tenancy. f. A timeline covering two pages from 22 August 2018 until 18 September 2024 together with supporting text messages detailing difficulties the landlords claimed to have had with the tenants regarding access for the landlords’ contractors.
The landlords’ documentary evidence and submissions were that: a. The house was in a reasonable state of repair given that it was built in 1968. b. While the bathroom would benefit from renovation it remains functional. The landlords have agreed to maintain the bathroom, not to renovate it. The landlords have no legal obligation to do anything further in relation to the bathroom. c. Its reports and photographs do not indicate any unusual or extraordinary issue with mould. d. The Clearview report states: “no signs of mould on window frames or walls”. The Inspection Report does not reveal any mould or moisture issues. e. The landlords reimbursed the tenants for the new curtains she purchased without obtaining the landlords’ prior consent and without receiving any notice from the tenants that there was an issue with them. f. The landlords’ routine inspection reports and records of repair requests do not indicate that the landlords have failed to repair any item which they were legally obliged to repair once notified by the tenants of the issue. g. There is a history of the tenants denying the landlords’ contractors access to the property, having initially agreed on dates and times, which has meant that some of the landlords’ contractors have refused to give quotes or undertake work at the property. h. The landlords responded by email to the tenants’ notice on 2 July 2024 that the landlord would not be renovating the bathroom and that: “There is sufficient ventilation in the bathroom with the extractor and the windows, any mould should be able to be cleaned off if it appears.” The landlord noted in that email that it has until July 2025 to comply with the HHS. i. As the tenancy started on 22 June 2018, the landlords have no legal obligation to comply with the HHS until 1 July 2025. Despite this, the landlords have installed compliant ventilation and have confirmed that the insulation is in accordance with the insulation standards. j. The landlords have cleaned out and repaired the guttering when it has been required but it has not been notified of any ongoing issues with the guttering until the recent communications from the tenants. k. The moisture issue in the master bedroom have been contributed to by the tenants living in the bedrooms with the doors closed during the winter. l. The landlords’ routine property inspections have not noted the need for any urgent maintenance. Reports in 2021, 2023 and 2024 record quotes are being obtained for painting the bathroom to “freshen up the room”. m. The landlords have considered renovating the bathroom and have obtained quotations to do so but decided against proceeding because of difficulties the contractors have reported in dealing with the tenants. The landlords believe that while the bathroom may benefit from renovation, the landlords are under no legal obligation to do so. n. By way of example, the landlords pointed out that its painting contractor was denied access by the tenants to quote for painting on 15 May 2023 and on 12 April 2024 the tenants told the contractor not to come until summer. o. Any issues with the carpet were not raised until 22 July 2024. The small areas of damage in the hallway have been repaired. The carpets remain serviceable and the landlords have no legal obligation to replace them just because they are old or worn. p. Trees were trimmed in December 2021. q. The toilet overflow was repaired in July 2021 with the contractor advising the landlord: “Apologies how long this took the tenant kept pushing me off every time I booked it in asking for the following week even today it was a struggle.” r. The header tank overflow was repaired some years ago, once the tenants alerted the landlords and the issue was identified. s. The tenants’ complaints about the property have escalated since the landlords advised the tenants of a rent increase on 8 April 2024. The tenants’ complaints are vexatious because the items the tenants want the landlords to remedy are not necessary or legally required. t. The landlords were notified of the ant infestation on 28 August 2024 and it was professionally treated on 6 September 2024 Healthy Homes Standards
Compliance dates for the HHS vary depending on the tenancy. Private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
This tenancy started on 22 June 2018. This means that the landlords had no legal obligation to comply with the HHS until after 1 July 2025.
While both parties presented HHS Reports indicating that the property does not comply with the HHS, because the landlords had no legal obligation to comply with the HHS until after 1 July 2025, the landlords were not in breach of the relevant provision in the RTA.
This means that the landlords had no obligation to draught stop the property or supply a heat pump.
The tenants’ claim must be dismissed. Housing Improvement Regulations
While not being required to comply with the HHS, the landlords have an obligation under section 45(1)(c) RTA to comply with “all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises”. The tenants referred to the Housing Improvement Regulations 1947.
Regulation 15 provides that “Every house shall be free from dampness” and Regulation 14 provides: “(1) The site of every house shall, to such extent as the local authority deems necessary, be provided with efficient drainage for the removal of storm-water, surface-water, and ground-water. No house shall be occupied which is built on land which is not adequately drained or which is subject to periodic flooding in times of normal rain. (2) Every house shall be provided with gutters, down-pipes, and drains for the removal of roof water to the satisfaction of the local authority. (3) Under every part of every house where the floor is of timber construction there shall be adequate space and vents to ensure proper ventilation for the protection of the floor from damp and decay.
The evidence provided by both parties indicates that the property was provided with gutters, down-pipes and drains. The tenants did not provide evidence that these were lacking. Indeed, the tenants’ HHS report confirms their presence and that they are discharging into the stormwater system. The evidence given to the Tribunal was focused on whether the gutters and down-pipes had been adequately maintained. There was no evidence that the tenanst had notified the landlord of any issues with the guttering until the tenants’ HHS report was supplied as part of the tenants’ application.
The recent District Court decision of Whittle v Rudd and Fraser [2023] NZDC 20120 confirms that the purpose of Regulation 15 is aimed at a house which is generally damp because it fails to prevent water ingress, rather than an area in a house that is damp due to an undiagnosed, internal, hidden leak.
The tenants did not provide any evidence that the cause of dampness was caused by the ingress of water, such as a roof leak. The tenants’ principal complaint was the presence of mould in the bathroom and master bedroom which the tenant claimed was caused by dampness and coldness. The tenants’ evidence was that the cause of dampness was the failure of the landlords to maintain and renovate the bathroom and bring the property up to the HHS.
The tenants suggested that the leak from the header tank and cistern overflows contributed to the dampness of the property but no evidence was supplied to the Tribunal in support of this assertion.
The Tribunal is not satisfied on the balance of probabilities that the tenants have established that the issues complained of by the tenants were caused by water ingress. The thrust of the tenants’ claim related to a lack of maintenance by the landlord and the claims around dampness and mould are more appropriately considered under section 45(1)(b) RTA.
The tenants’ claim for breach of section 45(1)(c) RTA is dismissed. Failure to maintain
Under section 45(1)(b) RTA the landlords are required “to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.”
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
A tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, 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.
A “reasonable” state of repair is not an absolute standard and must be assessed objectively, considering the age and character of the property.
While the tenants maintained that they had notified the landlords of issues with the property from the start of the tenancy, the tenants could not supply contemporaneous supporting documentation such as emails or text messages that would support the tenants’ claims that they had notified the landlords of these issues continuously over that length of time.
The landlords supplied copies of its regular Routine Inspection Reports and a log of the tenants’ notifications, together with evidence of the required works being completed.
The tenants expressed the view at the hearing that the landlords were under an obligation to inspect the property for the purposes of detecting any repairs which might be necessary. There is no legal requirement in the RTA that inspections must be carried out for this purpose. On the contrary, the legal obligation is on tenants to notify the landlord of necessary repairs. This makes practical sense as tenants are living in the property and are best placed to notice any issues.
The Routine Inspection Reports confirm that during these inspections the landlord did on occasion identify issues requiring remedy and that these were addressed.
As noted, the landlords’ legal obligation is to keep the property in a reasonable state of repair having regard to the age and character of the premises. This does not place any legal obligation on the landlords to renovate the property or improve it, only to undertake repairs which are necessary.
The landlords had no legal obligation to comply with the HHS until July 2025. They did not therefore have any legal obligation to upgrade the heat pump. The tenants chose not to use any other form of heating. The landlords did however install ventilation which complies with the HHS in both the kitchen and the bathroom. The tenants also confirmed that there were opening windows in the bathroom for ventilation. The landlord’s evidence and the tenants’ HHS report confirm that the property complies with the insulation requirements.
There is no suggestion that the tenants did not do their best to clean away any mould that appeared and kept the house in a very clean condition.
The mould report is not as conclusive as the tenants claimed. It states that “There are maintenance issues in the property that have allowed Mould to grow in areas of the home”, but it does not state what those maintenance issues are. Instead, it appears to conflate maintenance issues with compliance with the HHS by noting that the “insufficient heating in the lounge” is a maintenance issue.
Similarly, the doctor’s letter - which has been informed by the mould report – refers to unspecified maintenance issues causing the mould and a failure to meet “current Standards” without specifying what they were. This is presumably a reference to the HHS which do not apply to this tenancy.
The doctor’s letter is equally equivocal in its conclusions: “The presence of mould and Aspergillus is particularly concerning as it poses potentially serious health risks. Eileen has experienced ill health, which I believe is likely attributable to the living conditions....” [my emphasis].
Similarly, the tenants’ HHS report comments that the tenants’ health issues “could be related to the cold, damp property...” but concentrates on failures to meet the HHS as the cause of these issues, even though the HHS do not apply to this property.
The landlords’ routine inspections and the Clearview report do not note any issues with mould or moisture and the landlords deny that the mould the tenants has encountered is anything unusual or that cannot be managed using the usual cleaning products and routines.
I note that the reports obtained by the landlords and the tenants are not truly independent. They have been produced on the instructions of each party and with this proceeding in mind. They have each been paid for by the instructing party. However, both have been completed by experienced and competent people.
Having read each report thoroughly and weighed them with the other evidence, the result is that they cancel each other out. In the same way, the tenants’ photographs of mould at the property and the landlords’ photographs of an absence of a mould issue, cancel each other out. It is not unusual for parties’ evidence to conflict; indeed, that is why disputes proceed to applications and hearings. However, it does mean that the reports on their own do not establish the tenants’ claim on the balance of probabilities. It is necessary to weigh the parties’ other evidence.
The landlords argued that the choice by the tenants to live in their bedrooms and to have additional people living with them has contributed to the mould issues.
The tenants’ witness, the author of the mould report, confirmed that moisture which creates the conditions for mould to proliferate, becomes an issue if temperatures fall too low. The tenants complained that the house was cold and damp but confirmed that they had used no heating other than the heat pump in the property. It is reasonable to conclude that the failure by the tenants to use more heating than just the heat pump has therefore contributed to the cold and damp conditions causing the mould.
On the evidence before the Tribunal there is insufficient evidence to persuade the Tribunal on the balance of probabilities that it is any failure on behalf of the landlord in meeting its legal requirements that has caused the mould issue or that the mould issue has caused the tenants’ health problems. The tenants have not discharged the burden of proof and persuaded the Tribunal that the issues with mould are due to the landlords’ failure to maintain the property. The tenants have not shown that the landlords have failed to maintain the property, only that the property does not comply with the HHS.
The Tribunal is not persuaded on the balance of probabilities that the landlords have been in breach of their obligations in repairing any of the other issues raised by the tenants once they were brought to their attention.
The landlords under not under any obligation to replace old carpets unless they are unsafe or unsanitary. The tenants have not provided the Tribunal with any evidence in support of that claim. The photographic evidence indicates that the carpets are tired but still serviceable.
The two small areas of rot in the bathroom are not of such extent or significance to require repair by the landlords. They are relatively minor and cosmetic.
The tenants’ claim is dismissed. Breach of quiet enjoyment
The tenant claims that the landlords have interfered with the reasonable peace, comfort or privacy of the tenants in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The specific incidents the tenants complained about were the landlords obtaining two quotes for the refurbishment of the bathroom from tradespeople who had to enter the property and that the landlord then decided not to proceed with the works.
The landlords obtained the quotes at the tenants’ insistence but, as already noted, was under no obligation to proceed with the work.
As there is no evidence before the Tribunal that the landlords did not comply with the notice requirements for its contractors to enter the property, the Tribunal is not persuaded that the attendance by the landlords’ contractors in response to the tenants’ requests can constitute a breach of the tenants’ peace, comfort or privacy.
The tenants’ claim is dismissed. Retaliatory notice
The landlords gave the tenants a notice dated 2 July 2024 ending the tenancy on 30 September 2024 under section 51(2)(a) RTA because the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition.
The tenants claim the notice is retaliatory.
For a notice to be declared retaliatory, the tenants must prove that in terminating the tenancy, the landlords were motivated wholly or partly by the tenants exercising a right under the tenancy agreement or any Act, or by any complaint against the landlords. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
There are four issues to consider: a. Does the termination notice comply with section 51 RTA? b. If so, was the application made within 28 working days of the notice being served? c. Have the tenants proved that, in terminating the tenancy, the landlords were motivated wholly or partly by the tenants exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlords? d. If so, were the landlords justified in giving the notice because the tenants’ issue or complaint was frivolous or vexatious?
In this case, the landlords’ notice was valid and complied with the requirements of section 51 RTA and the tenants’ application was made on 18 July 2024 which is within 28 working days of the landlord’s notice.
The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
it is possible for a landlord to give notice when there is an outstanding complaint, even if that outstanding complaint is related to the decision to terminate so long as there is another reason which is proved to be an overriding one, above and beyond the complaint. However, the landlord will need to provide convincing evidence that their reason existed independently and not because of, the complaint.
Here, the tenants issued their 14-day notice on 19 June 2024 and the landlords issued its termination notice on 2 July 2024, just under two weeks later.
The landlords’ verbal evidence - supported by confidential documentation shown to the tenants at the hearing but not retained on the Tribunal’s file - was that: a. The reason given in their termination notice was genuine: the landlords intend to put the property on the market within 90 days of the termination date. b. The landlords are Australian citizens who live permanently in Australia. They have been in New Zealand during one of the landlord’s parent’s terminal illness. Now that their parent has died, they intend returning to live in Australia and divest themselves of rental property in New Zealand. c. Because of difficulties in obtaining access to the property to get work done required to ready the property to be put on the market, they determined to end the tenancy so that they could have vacant possession to carry out the work without interference to or delays caused by the tenants. d. The landlords acknowledged frustration at what it perceived to be the tenants’ difficulty in dealing with tradespeople and referred to the landlords’ timeline and supporting evidence. The landlords said that this was “an intractable problem”. It acknowledged that this played a part in its decision to sell. e. The tenants’ notice was frivolous and vexatious. None of the tenants’ claims in the tenants’ notice were valid. It represented the culmination of a number of email complaints that escalated after the tenants were given notice of a rent rise on 4 April 2024. f. The tenants had become fixated with having a new bathroom while the landlords favoured maintaining the current bathroom.
The tenants: a. Objected strongly to any suggestion that it had been obstructive or difficult with tradespeople and read out a number of friendly communications with some. The tenants acknowledged that on some occasions tradespeople’s appointments had to be cancelled due to a tenant’s ill health or, on one occasion, a birthday. b. Maintained that their complaints were valid, serious and long-standing; and that they were supported by advice given by Tenancy Services. c. Queried the landlords’ motivation in singling out this property as the first for the landlords to sell. d. Complained that the landlords did not respond to the tenant’s 14-day notice and instead issued the notice to terminate.
On the evidence before the Tribunal and having heard the parties’ submissions, the Tribunal is not satisfied on the balance of probabilities that the landlords’ notice was retaliatory for the following reasons: a. The landlords did respond to the tenant’s 14-day notice by email on 2 July 2024 as noted at paragraph 23(h) above advising: “There is sufficient ventilation in the bathroom with the extractor and the windows, any mould should be able to be cleaned off if it appears.” The landlords noted in that email that it has until July 2025 to comply with the HHS and that the owners have decided to put the property on the market. Essentially, the landlords rejected the tenants’ claims as requiring the landlords to take any action. The decisions of the Tribunal in this Order confirm that the landlords were not required to take further action. b. The landlords’ reasons for selling because they were returning permanently to Australia was a legitimate reason for giving the notice to terminate. c. The landlords being motivated by their view that the tenants have been difficult with tradespeople is founded on reasonable evidence, even if disputed by the tenants. d. The evidence supports the landlords’ claim of experiencing difficulty in having the bathroom renovations undertaken because of the tenants objecting to its timing in May 2023 and April 2024. e. The multiple claims brought by the tenants have all been unsuccessful. The most serious fall short of being characterised as frivolous or vexatious as the tenants have supplied significant supporting evidence and have gone to significant expense in having reports completed in support of their claims. However, the bringing of claims for events dating back some years without supporting evidence does suggest that some of the tenants’ claims were vexatious.
The tenants’ claim is dismissed. Contracting to contravene the provisions of the RTA
The tenants claimed that the provision in the tenancy agreement requiring the tenants to have the carpets cleaned commercially at the end of the tenancy contravened the provisions of the RTA.
The tenants noted correctly that there is no obligation on the tenants under the RTA to have the carpets commercially cleaned at the end of the tenancy.
The provision in the tenancy agreement does not contravene the RTA because there is no specific provision in the RTA about cleaning carpets. Similarly, it does not have the effect of directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of the RTA. This provision is simply inconsistent with the provisions of the RTA.
Section 11(1) RTA provides that: “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.”
The effect of this section is that the agreement to clean the carpets is of no effect unless the Tribunal determines that it should be enforceable if, for instance, the tenant had a pet and it was necessary to clean the carpets commercially to remove any pet odour or fleas.
The tenants’ claim is dismissed. Suppression
As the tenants have been unsuccessful in their claims, it is appropriate to suppress the landlords’ names and details.

Tenancy Tribunal case 4943715 — Mould & damp at 609 Queen Street, Levin, Levin 5510

Tenancy Tribunal case 4943715 — Mould & damp at 609 Queen Street, Levin, Levin 5510

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions