Published tribunal order
Tenancy Tribunal case 4987308 — Tenancy dispute at 19 Cabbage Tree Grove, Woodridge, Wellington 6037
Decided 30 Sept 2024 · Published 30 Sept 2024 · Application 4987308
- Exemplary damages
- State of repair
Party names are redacted in the official published order.
Order
- BY CONSENT - Yes Lets Limited - As Agent For R A K Investments Ltd is granted possession of the premises at 19 Cabbage Tree Grove, Woodridge, Wellington 6037 at 5pm on Wednesday 9 October 2024.
- Yes Lets Limited - As Agent For R A K Investments Ltd must pay [The tenant/s] $260.00 immediately, as set out in the table:
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- The landlord has applied for possession of the premises following the termination of the tenancy. The tenants filed an application which questions the validity of the notice, and raises concerns about maintenance, and unlawful entry. During the hearing the parties agreed on a date for possession. The remaining questions for me to decide include: • Was the notice a valid notice? • Were there were any breaches of the duty to repair and maintain? • Was there an unlawful entry?
Was the notice a valid notice?
- The landlord gave 90 day notice because the owner wants to put the house on the market for sale. The notice was served by email on one of the tenants. Service on any one of the tenants is sufficient notice. See section 136(4) Residential Tenancies Act 1986 (RTA).
- The tenants’ application the notice was retaliatory cannot be considered because it was filed after the 28 days specified section 54 RTA.
- It seems most likely to me from the emails provided that the owner is genuinely intending to sell the house. The first email I have about a sale is from April 2024. A desk top appraisal was done by an agent in June. There is supporting evidence the landlord has the same agent booked to look through the house after the end of the tenancy to finalise marketing. I find the notice complies with section 51 RTA, which means it is a valid notice.
- The tenancy was meant to end on 31 August 2024 which is less than 90 days ago. The requirements of section 64(1) RTA of the are satisfied.
Were there were any breaches of the duty to repair and maintain?
- The tenants claim that the landlord has breached its obligations under section 45 of the RTA. Under section 45 a landlord must provide and maintain the premises in a reasonable state of repair. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200. See section 45(1A) and Schedule 1A RTA.
- I did not consider a claim for the ducts because this was not a part of the application, and it was not clear from the documents uploaded by the tenants that this was a claim the landlord should prepare a defence to.
- The claim relating to the front door not being able to be locked for a week is dismissed. This is because the information the tenants sent through to the landlord did not make it clear there was a security issue. The claim the repair took an unreasonable amount of time is dismissed.
- The tenants have proved there was an unreasonable delay for the dishwasher repair and the Insikerator repair. The best evidence I have is that these repairs took seven weeks and ten weeks respectively, plus a few days. I find there was a loss of amenity because the tenants were paying for appliances they could not use. I find $15 a week to be reasonable compensation.
- The parties discussed the emails sent this year after some of the inspections. The tenants felt they were unnecessarily picky. I accept the wording “major concern” and “overall” did not clearly reflect the landlord’s intention. I do not need to take this any further because the parties had their say at the hearing and I cannot find a breach here.
- The tenants have asked for exemplary damages. I do not find the breach of duty for the kitchen appliances to be serious enough to warrant an order for exemplary damages. This part of the claim is dismissed.
Was there an unlawful entry?
- The tenants claim the landlord has entered the premises without consent or notice. A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
- The tenants said there have been a number of times when the have not been given the correct notice. They have always allowed entry, with one genuine exception when they were all sick. Because the tenants have given consent there have been no breaches. This claim is dismissed. Other orders
- Both parties have had some success so there is no reimbursement of the filing fee.
- Neither party has made an application for name suppression. The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. See section 95A RTA.
- I find I should use my discretion and allow suppression for the tenants. This is because both parties have had some success, the possession order was made by consent, and the tenants were genuinely concerned the notice terminating the tenancy was retaliatory. I find there is no public interest in their names.