What was Tenancy Tribunal case 4987952 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 4987952?

Compensation: Rent reduction (20 wee…: $3,880.00 awarded to tenant; Previous Order Application 4615558 D…: $1,920.60 awarded to tenant

What type of tenancy dispute was case 4987952?

The dispute type was not classified.

Where can I read the official tribunal order for case 4987952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11402360-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4987952 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 4987952?

Compensation: Rent reduction (20 wee…: $3,880.00 awarded to tenant; Previous Order Application 4615558 D…: $1,920.60 awarded to tenant

What type of tenancy dispute was case 4987952?

The dispute type was not classified.

Where can I read the official tribunal order for case 4987952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11402360-Tribunal_Order_Redacted.pdf.

12 Elmstone Avenue, Remuera, Auckland 1050 Tenancy Tribunal Case 4987952 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4987952 — net $5,800.60 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Previous order application 4615558 dated 18/10/2023	$1,920.60	Previous order application 4615558 dated 18/10/2023
Compensation: Rent reduction (20 weeks – 19/10/23 to 07/03/24	$3,880.00	Rent reduction (20 weeks – 19/10/23 to 07/03/24
Net award	$5,800.60
Total payable by Landlord to Tenant	$5,800.60

Claims and awards in Tenancy Tribunal application 4987952 — net $5,800.60 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Previous order application 4615558 dated 18/10/2023	$1,920.60	Previous order application 4615558 dated 18/10/2023
Compensation: Rent reduction (20 weeks – 19/10/23 to 07/03/24	$3,880.00	Rent reduction (20 weeks – 19/10/23 to 07/03/24
Net award	$5,800.60
Total payable by Landlord to Tenant	$5,800.60

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the [The tenant/s] name.
Ray White Remuera Property Management Limited must pay [The tenant/s] immediately, calculated as shown in the table below: DescriptionTenant Previous order application 4615558 dated 18/10/2023 $1,920.60 Compensation: Rent reduction (20 weeks – 19/10/23 to 07/03/24) $3,880.00 Total award $5,800.60 Total payable by Landlord to Tenant $5,800.60

Reasons

Both parties attended the hearing.
[The tenant/s] attended the hearing.
Mr Farmer and Ms Gao are the representatives of Ray White Remuera Property Management Limited who is the agent for the landlord, Rudie Zhang. Introduction
This hearing concerns a dispute regarding two primary issues: a. Compensation for unresolved maintenance issues; and b. A retaliatory notice of termination dated 1 November 2023.
The tenancy commenced on 10 March 2023 and ended on 7 March 2024. A previous Tribunal Order dated 18 October 2023 (“the Tribunal Order”) awarded the tenants $1,920.60 in compensation for a rent reduction due to a breach of healthy home standards. Other maintenance issues are also noted, specifically a leak and mould in an ensuite bedroom. The tenants claim that the landlords failed to comply with the Tribunal Order and seek additional compensation for the period from 19 October 2023 to 7 March 2024, based on the same 33% rent reduction. They also allege that the notice to terminate the tenancy issued on 1 November 2023 was retaliatory, as it was given 2 weeks after the tribunal's decision and the property was later re-advertised for rent.
Mr Farmer acknowledges the previous compensation order but argues that his office did not receive the tribunal's decision and was unaware of the obligation to pay. He contends that the notice to terminate the tenancy was not retaliatory but was issued because the owner's son intended to move into the property. However, the owner’s son later decided to reside in another property owned by the family, leading to re-advertising the property. Mr Farmer also disputes the extent of the compensation sought, arguing that the 33% reduction was excessive for the remaining period, as the major issues (the leak) had been resolved by 2 August 2023, leaving only cosmetic repairs.
The tenants further assert that the property remained uninhabitable due to the unresolved maintenance issues, which significantly impacted their living conditions. They also highlight the stress and inconvenience caused by the notice to terminate, which they claim forced them into a difficult housing situation. Mr Farmer, however, maintains that the tenants had the option to vacate earlier under the previous order and that the notice was issued in good faith, aligning with the owner's son's initial plans. Compensation for unresolved maintenance issues
The learned adjudicator, Aiolupotea, awarded compensation in favour of the tenants. I do not propose to go through her decision in detail. It is available to the public. The tenant’s submissions
The grounds the tenants seek compensation are that the room that had a leak and other issues was identified as a bedroom with an ensuite. It was their son’s room. The room was unusable due to the leak, which had caused significant damage, including water intrusion that affected the ceiling and carpet. The leak was eventually fixed by 2 August 2023, but there remained a hole in the ceiling that needed to be patched, and the carpet had to be removed due to mould. These are the maintenance issues for which the tenants are seeking compensation. The tenants seek compensation for the period between 19 October 2023 and 7 March 2024.
The tenants further submitted that the leak and subsequent mould exposure caused health issues, including hospitalisation due to mould exposure. They assert that they were not able to inhabit their own home safely and timely, which further supports their claim for compensation. The tenants seek a 33% rent reduction between 19 October 2023 and 7 March 2024 or 20 weeks. The landlord’s submissions
Mr Farmer pointed out a lack of communication from the tenants regarding the unfinished remedial work issues during the tenancy. He noted that no correspondence was received from the tenants about the ongoing problems until five months after they had vacated the property. Mr Farmer claimed that he did not receive the tribunal order regarding compensation, which he argued should have prompted him to take action. He emphasised that he would have complied if he had received the order. Furthermore, Mr Farmer contended that the tenants also bear some responsibility for the situation, suggesting that they did not adequately raise issues during the tenancy and imposed excessive conditions on the repair work.
Mr Farmer does not dispute that the tenants should be compensated for the inconvenience. However, he submits a 33% rent reduction is excessive. He suggests that the appropriate reduction is 10%. My view
There is no dispute the room was uninhabitable due to the leak, which justified compensation. However, it was remedied by 2 August 2023.
Mr Farmer confirmed that the leak from the roof had been fixed by 2 August 2023. The tenants did not dispute this.
Mr Farmer further acknowledged that while the leak was resolved, the room still had a hole in the ceiling that required cosmetic repairs, including patching and replacing the carpet. The room was no longer leaking, but the cosmetic issues remained.
Mr Farmer accepted, quite properly, that the room was uninhabitable during the leak, which affected its usability. He further submitted that the bathroom attached to the bedroom was functional, and the room could still be used for certain purposes, albeit in a less-than-ideal condition.
I have stated that I will not disturb or revisit the decision made in the Tribunal Order dated 18 October 2023. The issue of appropriate compensation as a percentage depends on whether the tenant’s son, any household members, or guests invited by the tenants could use the room comfortably between 19 October 2023 and 7 March 2024, along with each party’s legal responsibilities under the Residential Tenancies Act 1986. Below are the factors I considered: a. Condition of the room by 2 August 2023: the leak from the roof was repaired. The cosmetic repairs required were: i. A hole in the ceiling that needed to be patched. ii. Exposed concrete flooring due to the removal of the carpet, which had been taken out prior to 2 August 2023. b. Photos submitted in support of the tenants’ case. These photos include: i. 1 photo was taken on 3 August 2023 – a day after the leak was fixed. ii. 3 photos were taken on 19 February 2024 – 2 weeks and 3 days before vacating the premises. iii. 7 photos were taken on 6 March 2024 – a day before vacating the premises. c. Health and Safety: I do not have evidence to support the presence of mould in the room from 19 October 2023 to 7 March 2024. But I accept the unfinished state of the room could pose safety risks (a hole in the ceiling). The tenants are entitled to feel safe at home. d. The parties’ responsibility under the Act: i. The landlord was responsible for providing and maintaining the premises in a reasonable state of repair under s45(1)(b) of the Residential Tenancies Act 1986 (“RTA”). ii. The tenants were responsible for notifying the landlord “as soon as possible after discovery ... of the need for any repairs under s40(1)(d) RTA.
Overall, the room could be used. However, I doubt it could comfortably be used as a bedroom. The photos suggest that it might be more appropriately used as storage.
I have not forgotten that Mr Farmer and Ms Gao felt they could not enter the premises to make the cosmetic repairs because the tenants imposed excessive conditions. For instance, the room was to be sealed off from the rest of the house using plastic sheeting and a zippered door system to create a contained workspace. Conditions like these delayed the completion of the repairs, leaving the room in an unfurnished state for an extended period, and Mr Farmer’s office did not receive the Tribunal Order dated 18 October 2023.
Considering the parties’ submissions and evidence, the appropriate rent reduction is 20%. My reasons are: a. I very much doubt the room could be used as a bedroom. b. There is no evidence to suggest that the room was designed to serve as anything other than a bedroom, not as an alternative storage room. c. The toilet and shower were both functional and available for use. d. The landlord is legally responsible for maintaining the premises, but it will be difficult to discharge without the tenants’ assistance. I accept the tenants have concerns about health and safety issues if no conditions are imposed. However, I consider the conditions imposed to be excessive. It was not proportionate to the repairs that were required. e. I do not accept Mr Farmer’s submissions that his office was not required to take any action simply because it did not receive the Tribunal Order dated 18 October 2023. This is because: i. Mr Farmer’s office was aware that the remedial work had not been completed; and ii. Mr Farmer’s office was a professional property manager. While oversight was understandable, it would not be an excuse. It was an explanation, no more than that. f. Likewise, [The tenant/s] cannot claim that maintaining the property is solely the landlord’s responsibility, and therefore, they were not obliged to take any action. In my view, [The tenant/s] cannot rely on this excuse for compensation because they, too, have an obligation to inform Mr Farmer’s office.
I acknowledge that [The tenant/s] were going through a tough time when they found out the landlord had rejected their request to extend the tenancy. The aspect I struggle to grasp is that if the condition of the room was unacceptable, why did they remain silent on this issue during the tenancy?
Accordingly, the total rent reduction in favour of the tenants is 20%, amounting to $194 per week for 20 weeks. The landlord is required to compensate the tenants $3,880.00. Retaliatory notice
On 1 November 2023, the landlord gave the tenants a notice ending the tenancy on the expiry of the fixed-term tenancy. The tenants claim the notice is retaliatory.
For a notice to be declared retaliatory, the tenants must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. 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. [The tenant/s] position
[The tenant/s] claim that the notice issued on 1 November 2023 to terminate the tenancy by 7 March 2024 was retaliatory following their successful compensation claim.
They claim that the landlord justified the termination notice by asserting that his son would move in, yet two weeks after they vacated, the property was relisted for rent.
They argue that the owner’s son never moved in and instead rented another property, indicating that the notice dated 1 November 2023 was not genuine.
They also mentioned that when their home purchase fell through in December 2023, they requested an extension of the tenancy beyond 7 March 2023, which was denied within two days.
Due to their unfamiliarity with the law, they did not challenge the termination notice within 28 working days of receiving it so the Tribunal could determine whether it was retaliatory. Mr Farmer’s submissions
The termination notice was not retaliatory. It was issued because the owner’s son intended to move in.
Mr. Farmer provided the following evidence to support the claim that the notice issued on 1 November 2023 was not retaliatory but a genuine termination notice based on the owner's son intending to move in. a. Short-Term Rental Agreement for the Owner’s Son: i. Mr. Farmer submitted a tenancy agreement indicating that the owner's son rented another property on a short-term lease from 18 December 2023 to 7 April 2024 while awaiting the end of [The tenant/s] tenancy. b. Ownership Documents for an Alternative Property: i. Evidence was provided showing that the owner owned another property at Remuera (I have removed the property address for privacy reasons). c. Notice to Vacate for the Tenant at Remuera Property i. A formal notice to terminate was issued to the tenant at Remuera property on 18 March 2024, supporting the claim that the owner's son later chose to move there instead of the tenancy address.
Mr Farmer submitted that, based on the evidence before me, the intent was genuine when the termination notice was issued, and the subsequent change of plans does not invalidate the legitimacy of the notice.
Mr Farmer pointed out that the tenants never contested the termination notice within the 28-day period and only lodged their claim with the Tribunal nine months and 29 days later.
Mr Farmer submitted that the tenants' claim is opportunistic and not reflective of actual retaliation. My view
[The tenant/s] submitted their current application to the Tribunal on 29 August 2024. This is 9 months and 29 days after they vacated the premises. While the law does not prevent them from raising the complaint with the Tribunal, it does raise an issue of purpose.
However, the fact that the property was relisted not long after the tenants vacated raises questions about the true intent of the termination notice.
The evidence provided by the landlord suggests an initial genuine intent for the owner's son to move in, but the subsequent change in plans complicates the matter.
Given the passage of time and [The tenant/s] eventual voluntary departure at the end of the fixed-term lease, the retaliatory nature of the notice is difficult to establish conclusively.
Accordingly, I am not satisfied that [The tenant/s] have discharged their burden of proof on the balance of probabilities.
The claim against the landlord for issuing a termination notice in response [The tenant/s] successful claim for compensation in October 2023, which is a retaliatory notice, is dismissed. Filing fee
I decline to reimburse [The tenant/s] for their filing fee because their claims have been partly successful. Name suppression
I must grant [The tenant/s] their name suppression application because they substantially succeeded in the proceedings.
Accordingly, the names of [The tenant/s] are suppressed, but the tenancy address is not.

Tenancy Tribunal case 4987952 — Tenancy dispute at 12 Elmstone Avenue, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 4987952 — Tenancy dispute at 12 Elmstone Avenue, Remuera, Auckland 1050

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions