Published tribunal order
Tenancy Tribunal case 5022041 — Property damage at 4 Fair Crescent, Feilding, Feilding 4702
Decided 25 Nov 2024 · Published 25 Nov 2024 · Application 5022041
- 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 parties’ names and identifying details.
- The tenant is awarded $150.00 compensation for the landlord’s failure to repair the toilet promptly.
- The landlord is awarded $150.00 reimbursement for the plumbing invoice.
- The tenant’s other claims are dismissed.
- The result is that neither party is required to pay the other any sum and that all matters between them arising out if the tenancy are now concluded.
Reasons
- Both parties attended the hearing.
- The Tribunal has issued an interim order on 29 October 2024 which has determined claims regarding rent arrears and the refund of the bond.
- The tenant confirmed that they have received a refund of the bond of $1,710.00.
- The tenant’s application is for compensation and exemplary damages for the landlord: a. Failing to “maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”. See section 45(1)(b) Residential Tenancies Act 1986 (“RTA”). b. Unlawfully entering the premises. See section 48(4) RTA. c. Breaching the tenant’s right to quiet enjoyment. See section 38 RTA.
- The landlord’s application was for compensation being reimbursement of the expenses incurred in clearing the sewage pipe. Standard of proof and evidence
- In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, each party 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, videos and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
- While I have not referred to all the evidence 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 parties’ applications with this requirement in mind. Agreed facts
- The parties largely agreed to the following facts: a. The property is a three-bedroom house which was occupied by two adults and two young children. b. The single toilet for the property is in the bathroom. c. On the evening of Thursday 13 June 2024, the tenant contacted the landlord’s Property Manager (“PM”) and notified him that the toilet was not emptying, appeared to be blocked and could not be used. d. The PM contacted the landlord who asked that a video be sent to him showing the problem as he was concerned that the blockage had been caused by the tenant and could be easily fixed without engaging a plumber. e. On Friday 14 June 2024 the PM told the tenant that someone would be over to look at the problem within 24 hours. Nobody arrived on Saturday 15 June 2024. f. On Sunday 16 June 2024 the landlord’s agent came to the property and tried to fix the blockage with a plunger. This had already been unsuccessfully tried by the tenant and that failure conveyed to the PM. The landlord’s agent said that he would return the next day. g. When nobody showed up on Monday 17 June 2024, the tenant contacted the PM yet again, asking that the toilet be fixed urgently. h. A plumber came to the property and fixed the issue on Monday 17 June 2024. i. The landlord terminated its arrangement with the PM on 20 June 2024. It notified the tenant on that date of the change and directing that rent payments be made directly into its bank account. j. The landlord issued a 14-day notice to the tenant on 26 June 2024 requiring the tenant to pay the rent into its nominated account. k. The tenant received advice from the PM and Tenancy Services that they should continue to pay rent into his bank account. The tenant did so until the end of the tenancy. l. The landlord continued to telephone and text the tenants regarding their failure to pay the rent into its nominated account and “rent arrears”. m. The landlord filed its application with the Tribunal for rent arrears on 15 July 2024. n. One of the tenant’s parents emailed the PM and the landlord on 16 July 2024 expressing concern at: i. The stress and worry the tenants had been placed under due to the conflict between the landlord and the PM. ii. The tenant’s need for the bond refund for their new property. iii. The amount of communication from the landlord to the tenant, including trying to contact a tenant at their place of work. o. The landlord telephoned the parent to discuss the situation and offered some suggestions. p. The tenant filed their application with the Tribunal on 1 October 2024.
- There are other agreed facts relating to specific claims which will be detailed further in this Order. The tenant’s claim for failure to maintain
- The tenant claimed that the delay by the landlord in having the toilet fixed was a breach of its obligation to maintain the premises in a reasonable state of repair.
- The tenant was without the use of a toilet for nearly four days. During that period the tenant and their young family had to go to the home of a relative at considerable inconvenience.
- The landlord’s obligation is to investigate and repair a defect brought to its attention within a time frame which is reasonable in the circumstances. What is a reasonable time frame depends on the gravity of the problem and also on the attempts made by the landlord to investigate and fix the problem.
- The repair of the only toilet in premises is urgent. It needs to be repaired as soon as possible. In this case, where the tenant notified the PM in the evening, it would be reasonable for the toilet to be repaired the next day or by the following day at the latest.
- It is not relevant that the blockage was caused by the tenant flushing wet wipes. The tenant’s belief that their being marketed as “disposable wet wipes” mean they could be flushed is not unreasonable. Similarly, he tried himself to fix the blockage with a plunger and told the PM that he was unsuccessful.
- It is appropriate that the tenant receive modest compensation for the inconvenience and $150.00 is an appropriate sum.
- The landlord’s failure to have the problem remedied in a reasonable timeframe was not intentional, nor would it be just to award exemplary damages. The landlord should have engaged a professional tradesperson on the morning after the tenant advised it of the problem. This was not a situation where the landlord ignored its obligations, only that it was tardy. This caused the tenant significant inconvenience and the tenant deserves to be compensated. However, the award of compensation is sufficient reminder to the landlord of its obligations under section 45 (1)(b) RTA without imposing any additional penalty. The landlord’s claim for compensation
- The landlord produced evidence of paying an invoice from the plumber who cleared the sewage line for $687.13. He also provided a letter from that plumber dated 18 June 2024 confirming that “the drain was full of baby wipes”.
- The tenant accepted that baby wipes were flushed down the toilet. The tenant believed that as they were disposable baby wipes, they would not cause an issue.
- The landlord has persuaded the Tribunal on the balance of probabilities that the blockage was caused by the actions of the tenant in flushing baby wipes down the toilet. The tenant is therefore responsible for the landlord’s cost of repair.
- The landlord explained that it did not seek to recover this expense from the tenant at the time of the incident because he wished to help them. However, the landlord advised that if the tenant was successful in any of their claims against it, then it would ask that such amount of the plumber’s cost awarded to it be offset against any amount the Tribunal awarded to the tenant.
- The landlord made it clear that if the tenant was not successful in any of their claims, it did not require the Tribunal to award any amount of the plumber’s cost to it.
- It is therefore appropriate to award the sum of $150.00 to the landlord. Tenant’s claim for unlawful entry
- The tenant claims 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) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant gave evidence (which the landlord accepted) that the landlord came to the premises on 2 June 2024 with about four other people. The landlord told the tenant that they were there to inspect the property regarding the proposed subdivision of which the tenant was aware.
- The landlord did not enter the premises. For the purposes of section 48 RTA, “premises” do not include the land on which the house property is situated. Therefore, a landlord is not prevented from knocking on the door of the premises and being on the grounds for a legitimate purpose.
- On these facts, the tenant’s claim that this incident was an unlawful entry by the landlord must be dismissed.
- The tenant gave evidence that: a. The landlord gave notice by text on 8 July 2024 that it wished to inspect the property on 10 July 2024 “For healthy home compliance and subdivision related work.” b. The landlord did not have any work done because the premises complied with the Healthy Homes Standards (“HHS”) and the landlord knew this. c. The landlord’s purpose in visiting the tenant was to pressure her about making the rent payments to its account.
- The landlord gave evidence that: a. There were HHS issues that he needed to make himself aware of. b. It believed incorrectly that it needed to have a HHS report prepared annually. c. The landlord wanted to offer the tenant a reduced rent in exchange for the tenant paying rent directly to it. d. He wanted to check directly with the tenant regarding maintenance issues involving heat lamps in the bathroom and the dishwasher. e. It was necessary to visit the property to consider its proposed subdivision.
- The tenant’s claim is that the reasons stated in the landlord’s notice were false and that the purpose of the visit was to apply pressure regarding the rent payments.
- Section 48(2)(b) RTA provides that the landlord may enter the premises “for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks.”
- Having considered the evidence of both parties, the Tribunal is not satisfied on the balance of probabilities that the landlord’s entry was unlawful. The landlord gave a valid notice and is therefore entitled to enter the premises. The fact that the landlord then discussed the rent situation and other matters with the tenant does not make his entry to the premises unlawful.
- The tenant’s claim for unlawful entry by the landlord is dismissed. The tenant’s claim for breach of quiet enjoyment
- The tenant claimed that the landlord’s repeated telephone calls, emails and texts, together with visiting the property, regarding the cancellation of its agreement with the PM and the payment of rent breached their quiet enjoyment and amounted to harassment.
- Both the tenant and the landlord supplied copies of the messaging that occurred.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
- 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.
- The tenant’s mother gave evidence of the significant stress that the landlord’s actions caused her daughter, while acknowledging her susceptibilities.
- 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. These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. The definitions also require the act to be intentional: carelessness or negligence is not sufficient.
- The landlord explained that he was very concerned by the tenant not paying the rent as it had directed. Consequently, the landlord was not receiving the rent and was worried because it had mortgage payments, rates and insurances to pay without any income from the premises.
- The landlord confirmed that once the tenant’s parent had emailed it and complained about the effect its correspondence was having on the tenant, it stopped.
- The landlord acknowledged telephoning one of the tenants at work on one occasion. The tenant confirmed that he did not answer.
- The Tribunal accepts that the tenant was stressed, worried and concerned by the communications from the landlord. The tenant was an innocent party caught in a dispute between the landlord and the PM. Equally however, the Tribunal accepts that the landlord was concerned by the tenant not paying the rent as it had directed and that it believed it was only taking reasonable and legitimate steps to get the rent directed into its account. The Tribunal accepts that the purpose of the landlord’s communications was to get payment of the rent, not to harass the tenant and cause distress.
- The Tribunal is not satisfied on the balance of probabilities that the landlord’s communications regarding a live issue amounted to intentional harassment so that exemplary damages are payable, nor that they were such as to justify an award of compensation. The landlord had valid concerns and was entitled to pursue money which it believed was due. It took the appropriate step of filing an application with the Tribunal and stopped communication when its effect was drawn to its attention.
- The tenant’s claim is dismissed. Suppression
- Both parties have had success in their applications and so it is appropriate that their names be suppressed and that each party bears their filing fee.