What was Tenancy Tribunal case 4961277 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 4961277?

Break Fixed Term: $485.00 awarded to landlord; Compensation: $27.00 awarded to tenant; Property Damage: $75.00 awarded to tenant; Failure To Provide Glass Crate: $50.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $3,850.00 awarded to landlord

What type of tenancy dispute was case 4961277?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4961277?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11224234-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4961277 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 4961277?

Break Fixed Term: $485.00 awarded to landlord; Compensation: $27.00 awarded to tenant; Property Damage: $75.00 awarded to tenant; Failure To Provide Glass Crate: $50.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $3,850.00 awarded to landlord

What type of tenancy dispute was case 4961277?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4961277?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11224234-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4961277 — Rent arrears

Claims and awards in Tenancy Tribunal application 4961277 — net $2,010.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 12 September 2024	$3,850.00		Rent arrears to 12 September 2024
Break fixed term	$485.00		Break fixed term
Filing fee reimbursement	$27.00		Filing fee reimbursement
Failure to provide glass crate		$50.00	Failure to provide glass crate
Compensation: requiring tenants to carry out repairs for		$75.00	requiring tenants to carry out repairs for
Compensation		$27.00	Compensation
Total award	$4,362.00	$152.00
Net award	$2,010.00
Total payable by Tenant to Landlord	$2,010.00

Claims and awards in Tenancy Tribunal application 4961277 — net $2,010.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 12 September 2024	$3,850.00		Rent arrears to 12 September 2024
Break fixed term	$485.00		Break fixed term
Filing fee reimbursement	$27.00		Filing fee reimbursement
Failure to provide glass crate		$50.00	Failure to provide glass crate
Compensation: requiring tenants to carry out repairs for		$75.00	requiring tenants to carry out repairs for
Compensation		$27.00	Compensation
Total award	$4,362.00	$152.00
Net award	$2,010.00
Total payable by Tenant to Landlord	$2,010.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants and the Landlords name and identifying details.
[The tenant/s] must pay [The landlord/s] $2,010.00 immediately, calculated as shown in table below.
The remainder of the landlord’s and the tenant’s claims are dismissed.

Reasons

The landlord was represented at the hearing by [The landlord’s representatives]. The tenants’ property manager did not attend the hearing as she is currently on maternity leave. Both tenants attended the hearing.
The landlord has applied for rent arrears, compensation for costs incurred in releasing the tenants early from the fixed term tenancy, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants’ claim compensation, reduction of the fixed term, refund of the bond and reimbursement of the filing fees. The tenants’ application included a claim for exemplary damages, however the tenants confirmed at the hearing that claimed compensation only.
In considering the claims, the “standard of proof” or the level of evidence required is “on the balance of probabilities.” In other words, the party bringing the claim (the applicant) must establish with evidence that their claim is “more likely than not.” Background:
The tenancy was a fixed term tenancy which commenced on 24 November 2023 and was due to end on 23 November 2024. The premises has three bedrooms, 1 living room and 1 bathroom. Rent was $550.00 a week.
In June 2023 the tenants let the landlord know that they wanted to end the tenancy early. The landlord agreed on the condition that the tenants paid rent until a new tenant was found and paid the costs incurred in breaking the fixed term.
The property was advertised for rent once the tenant paid advertising costs of $415.00. The tenants vacated the property on 9 July 2024. A new tenant was found around 6 weeks later; the new tenancy started on 13 September 2024. The Landlord’s claim

How much is owed for rent?

The tenants paid their rent in advance while they were living in the premises. However the tenants did not pay the rent due from 26 July 2024 until the end of the tenancy on 12 September 2024.
The tenancy agreement records that if the landlord agrees to the tenancy ending prior to the fixed term, the tenant is to pay all rent due until the replacement tenant takes occupation of the premises. The tenants were reminded of this obligation before they completed their application to the landlord for early release from their fixed term tenancy. I find payment of rent until a new tenancy started was a term of the agreement to release the tenants earlier from the tenancy than under the fixed term.
The landlord provided rent records which prove the amount owing until the new tenancy commenced.

How much is owing for costs to terminate the fixed term early?

Section 44A, Residential Tenancies Act 1986 (RTA) allows the landlord to claim any expenses reasonably incurred in finding a new tenant where the landlord agrees to the tenancy ending early. A landlord seeking to recover such expenses must first provide the tenant with an itemised account of the expenses.
The total itemised account is for $1,363.50 and includes advertising costs of $415.00 already paid by the tenants. The landlord seeks $948.50, being the balance of the account. The tenants dispute the amount charged as they consider it is excessive; they thought the advertising fees that paid were all of the costs they would incur.
The purpose of section 44A is to ensure that if a landlord agrees to reducing a fixed term tenancy they are able to recover the costs they reasonably incur in doing so. I emphasis the word ‘reasonably’ as that entails consideration of a number of factors relating to the circumstances of an application. The factors considered previously by the Tribunal in determining the reasonableness of the costs claimed under s 44A include 1 : a) What were the actual costs incurred? b) What were those costs for- were they for items that the landlord would normally pay for? c) What did the parties agree to as reasonable? d) What is fair and equitable in the circumstances.
In considering those factors and all of the evidence and submissions presented by the landlord and the tenants, I find in this situation it is reasonable that the landlord is entitled to $900.00 including the advertising costs paid. I have reached this conclusion for the following reasons: a) The tenants were provided initially with details of the costs involved set out under the headings of advertising; administration; showing of property; inspection report. The advertising fee ($415.00) was shown as a fixed cost. The hourly rates charged and the time estimated for the items under the other headings were advised. However the totals for each heading were not calculated as it was not known how many prospective tenants may be 1 See None v None TT4953654, 4900556 Remote 15 August 2024 reference checked (for example). A final break down of the expenses incurred was provided once new tenants were found. b) The landlord has not presented any evidence supporting that the costs charged were incurred. For example, there are no invoices supporting the cost of advertising; there is no evidence supporting the number of tenants reference checked or shown the property; or any evidence verifying the time taken to carry out the work charged. c) At the end of the tenancy (12 September) the tenancy had 9-10 weeks to run before the fixed term was due to expire. The landlord took six weeks to find the new tenants which means from the time the property was advertised the tenancy had less than 4 months to the end of the fixed term. d) A lot of the expenses claimed would have inevitably been incurred by the landlord in obtaining new tenants at the end of the fixed term. That is, the property would have been advertised, reference checks carried out, viewings held and a new tenancy agreement signed up and loaded into the landlord’s system. The end of tenancy final inspection would have been done at no cost to the tenants. e) The tenants agreed to pay $415.00 for advertising. f) The landlord advertised extensively and still took 6 weeks to find a suitable tenant. I accept the landlord’s evidence that they experienced difficulties in replacing the tenants. For that reason I accept the costs are likely to be higher than if the replacement tenant was found within a few weeks of the premises being advertised. g) The costs invoiced to the tenants ($1,363.50) are significantly higher than other awards generally made by the Tribunal.
Therefore the tenants are to pay $485.00, being $900.00 less $415.00 already paid. Are the tenants liable for the cost to mow the lawns and weed the gardens prior to the new tenancy starting?
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA.
The landlord claims $226.55 to mow the lawns, weed the gardens and remove all green waste at the end of the tenancy (12 September 2024).
The tenants handed the keys to the landlord when they vacated on 9 July. They returned to do extra cleaning following a final inspection report completed on 10 July, and were told to return the keys to the property manager by 15 July.
When new tenants where found the tenants were contacted by the property manager and asked to return to do the lawns and gardens. The tenants believed they had completed all of their obligations at the tenancy premises in July.
I am satisfied that the property manager’s action in asking for the keys to be returned to them after the tenants vacated led the tenants to reasonably believe they had completed all the work required of them and that they had met all of their obligations at the tenancy premises. I find it reasonable that as a result the tenants have no liability for costs the landlord has paid to mow the lawns and weed the gardens in September. Accordingly this part of the claim is dismissed. The tenants’ claim

Are the tenants entitled to compensation?

The Tribunal can award compensation where a party has breached the tenancy agreement or any provisions contained in the RTA and where the other party has suffered a loss because of that breach. It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in but for the breach.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court, noting the decision of the Tribunal in Palmer v Housing New Zealand (No.2) Auckland TT 2378/92, confirmed that the Tribunal must take into account the following factors: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The tenants claim compensation of $5,000.00 for the following: a) the air-conditioning unit not working properly
The unit did not always turning on and off as it should. A maintenance request was made on 27 May, but was cancelled the next day as the unit started functioning correctly. However the unit then continued to inconsistently turn on and off, and then could not be turned off. To prevent the unit working 24/7 the tenants turned the power off at the mains or at the relevant fuse 2 . A second maintenance request was made on 13 June and an electrician diagnosed the 2 From the evidence presented I am satisfied that the tenants were between them both turning the mains off completely and turning off the relevant fuse. problem as a misfunctioning remote on 18 June. A new remote was supplied on 25 June.
The tenants’ claim compensation as the unit failed to work as it should for two months prior to the new remote being supplied. They believe it took too long to fix the fault.
A landlord is required to maintain the premises in a reasonable state of repair having regard to the age and character of the property (s45(1)(b)). This requires a landlord to respond within a reasonable time to requests for repairs that arise from maintenance issues affecting the tenant’s use of the property. If a landlord does not respond, or cannot respond, within a reasonable time, compensation is payable for any loss or inconvenience caused.
I find the tenants are not entitled to compensation for this issue as I am satisfied the landlord addressed the matter in a reasonably time and manner. A work order was sent to the electrician on the same day as the tenants’ second maintenance request. The electrician went to the premises 3 working days after receiving the work order. The remote was supplied 5 working days later as it was not in stock locally and the electrician had to arrange for it to be couriered. b)The security alarm.
On Sunday 16 June at around 8.20pm the alarm started sounding and continued to sound non-stop for just under an hour. The noise was loud and disturbed the tenants and their children as well as the neighbours. The tenants had been told the alarm was disconnected and had no information or manual on how to use the alarm. The tenants called the property manager’s emergency number but no reply was received. Eventually the tenants got hold of an electrician who advised to pull out the fuse beside the alarm unit in the ceiling.
The only potential breach by the landlord in this matter is the failure to answer or reply to their emergency number. The cause of the alarm going off is not certain, however in my view it seems likely the alarm has somehow reset, probably as a result of the tenants turning the mains on and off. I am satisfied that the tenants’ actions have likely caused the alarm to sound, and I am not convinced the alarm would have been turned off any sooner had the property manager responded to the call to its emergency number. Therefore I find it is not reasonable or just to award any compensation for the failure to response to the tenants call. c)The toilet
The tenants believe the toilet blocked easily and needed to be replaced with a toilet with a large capacity cistern. They made a maintenance request on 5 January and a plumber came and unblocked the toilet the next day. The tenants said the property manager told them the cistern needed replacing but that would mean replacing the toilet which the landlord/owner was not prepared to do due to the cost. The tenants were told to “flush twice” and not use too much toilet paper. The toilet blocked at least 3 further times. The tenants did not make any further maintenance requests through Tapi 3 but say they informed the property manager by phone of the ongoing problem. The blocked toilet resulted in the tenants and their children going off site to use other toilets including public toilets, and living with the inconvenience and smell of blocked toilets.
The landlord addressed the maintenance request for the first blockage in a timely manner. The tenants have not presented any evidence such as texts or emails supporting that they verbally told the landlord the problem was continuing. Without that evidence I cannot be satisfied on the balance of probability that the landlord had notice of the continuing problem and failed to maintain the property as required under s 45(1)(b). Accordingly this claim is dismissed.
I acknowledge that the tenants concern with this issue and other issues is that the property manager made them feel as if they “should do better” and that they did not raise maintenance requests in an attempt to keep a good relationship with their landlord. However bringing maintenance issues to the attention of the landlord and having evidence to establish that has been done, are key to a successful tenant application under section 45(1)(b). d)Extractor Fan in the bathroom
The tenants’ claim the extractor fan in the bathroom was not effective as it did not have enough suction to remove steam and moisture from the bathroom and as a result the bathroom was mouldy.
The Healthy Homes Standards (HHS) came into force on 1 July 2019. These require landlords to comply with minimum standards in regard to heating, insulation, ventilation, moisture ingress and drainage, and draught stopping. The dates for compliance are being phased in over time and vary depending on the date of commencement of the tenancy. In this instance the premises had to comply with HHS within 120 days of the start of the tenancy; that is by 23 March 2024 4 .
Under the HHS there must be an extractor fan in all bathrooms and kitchens that vents to the outside installed with a minimum defined extraction capacity. 3 The property management software used by the landlords and accessible by the tenants through a QR code under the kitchen bench in the premises 4 See section 45(1)(bb) of RTA are set out in Schedule 1 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The landlord has presented a HH Certificate of Compliance which records the extractor fan in the bathroom complies with the HHS Regulations. The electrician who checked the air-conditioning unit also inspected the extractor fan and reported to the landlord that it was working as it should. Based on the landlord’s evidence I am satisfied that the extractor fan meets the HHS required.
Regardless, the photographs presented by the tenants establish that mould grew in the bathroom.
In Semmens v Wadman 5 , the Tribunal noted that mould is commonly present throughout all residential dwellings in New Zealand to some degree, and that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered: Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.
The presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the property is not enough to establish a breach on the part of the landlord or that there were defects in the premises which have caused the mould to develop.
Here the tenants stated that they did not open the window in the bathroom much as the position of the mirror meant that the neighbours could see into the bathroom when the window was open. If that was an issue the tenants should have brought it to the attention of the landlord. That raises the question in my mind of whether the tenants ventilated the bathroom sufficiently. In any event from the evidence I am satisfied that it has not been established that the mould is a result of a breach of the HHS for ventilation or any other breach on the part of the landlord. Accordingly this part of the claim is dismissed. e) Failure to provide a glass crate.
A glass recycling crate was not provided by the landlord at the start of the tenancy. The pre-tenancy inspection report records “The glass crate has been ordered”.
The tenants’ evidence that they asked the property manager several times for a glass crate is credible given it was not provided at the start of the tenancy. The tenants gave up on the landlord providing the crate and organised with the council for a crate to be delivered at the end of January 2024. The invoice was sent to the landlord. 5 [2022] NZTT Manukau 310605
I find the landlord has breached its obligation under the tenancy agreement to provide the tenants with the glass crate 6 . The tenants waited 2 months for the landlord to provide the bin and suffered inconvenience in dealing with glass waste until then as well as having to provision of a crate themselves. I award $50.00 in compensation. f) Curtains not provided for the kitchen window
A café net curtain, or half curtain, was provided for the kitchen window at the start of the tenancy, however the tenants asked if they could have a full curtain over the window for warmth and privacy. They said the house behind the premises is very close and at night when the lights are on the neighbours can see into their living area through the kitchen window. The property manager advised the landlord would not provide a full curtain.
The landlord is not obliged to provide curtains under the RTA. Curtains are chattels. Under the tenancy agreement the landlord is required to provide the chattels listed in the agreement and ingoing inspection report. By implication that means providing the curtains that are in the property when the agreement is signed. As the tenants have not established a breach by the landlord this claim is dismissed. g) False blame for damage to premises
After the tenants vacated the property manager raised a number of issues relating to minor damage at the property, including dents on walls and stain/s to the carpet. The tenants said they did not cause the damage, which was not accepted by the property manager. The tenants spent time trying to rectify the damage before the property manager realised the ingoing inspection report recorded the damage was there at the start of the tenancy. While the tenants are expected to mitigate their loss, they have spent time and energy, and have been inconvenienced as a result of the property manager not checking correctly the ingoing inspection report. Had she done that it should have been clear to her that the tenants had not caused the damage as she had assumed. I award $75.00 in compensation for this failure. h) The landlord did not show for the first inspection after the tenancy started.
The landlord did not turn up to inspect the property after giving the tenants’ notice of an inspection. Tenants do not have to be at the premises when the landlord carries out an inspection. While I accept the tenants prepared the 6 Under the heading “Chattels provided with the tenancy” in the tenancy Agreement the landlord is to provide all chattels listed on the ingoing inspection report. premises for the inspection I do not find that they are entitled to any compensation for this part of their claim.

Should the fixed term of the tenancy be reduced?

The tenants have applied for reduction of the fixed-term tenancy to a date earlier than it ended when the new tenancy started on 13 September 2024.
The Tribunal may reduce a fixed term tenancy under s 66(1), RTA where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced.
The usual legal position, which is reiterated in the relevant RTA provision, is that with a fixed-term contract is that the term of the contract will be applied strictly and it is only in limited circumstances that a court or tribunal will interfere with it. There is a high threshold that needs to be met before the Tribunal will reduce the term of a tenancy.
The tenants were concerned the property had repetitive maintenance issues which they felt were not being satisfactorily addressed and that those matters were having an effect on their family. The tenants did not want to pursue the maintenance issues with the property manager as they wanted the relationship to be harmonious. Their view was that the property manager believed they were a hassle and were raising minor matters. The tenants also commented that they did not need the irritation of the maintenance issues as their work environment presented some difficulties and caused them stress.
However, the objective threshold test of an “unforeseen” change under s 66(1) is a high threshold. I am not persuaded that an objective observer would say, based on the grounds presented, that there has been an unforeseen change in the tenant’s circumstances that has caused them severe hardship.
Therefore I find the threshold test of an unforeseen change is not met and I decline to reduce the term of the tenancy.
Filing fee reimbursement: Both parties have been partly successful in their claims and are entitled to reimbursement of their filing fee.
Suppression: Both parties have requested name suppression and I consider it appropriate to suppress both parties’ names and identifying details. The landlord has been mainly successful in its claim and the tenants partly successful in their claim. I consider there is no public interest in publishing the parties’ names and details. See s95A RTA.

Tenancy Tribunal case 4961277 — Rent arrears

At a glance

Tenancy Tribunal case 4961277 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

How much is owing for costs to terminate the fixed term early?

Are the tenants entitled to compensation?

Should the fixed term of the tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

How much is owing for costs to terminate the fixed term early?

Are the tenants entitled to compensation?

Should the fixed term of the tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions