What was Tenancy Tribunal case 5033176 about?

The tribunal order states: The Tribunal orders suppression of the tenant name and identifying details.

How much money was awarded in case 5033176?

Compensation: $1,000.00 awarded to tenant; Rent Arrears: $1,071.43 awarded to landlord; Water Rates: $137.33 awarded to landlord

What type of tenancy dispute was case 5033176?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5033176?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12117900-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5033176 about?

The tribunal order states: The Tribunal orders suppression of the tenant name and identifying details.

How much money was awarded in case 5033176?

Compensation: $1,000.00 awarded to tenant; Rent Arrears: $1,071.43 awarded to landlord; Water Rates: $137.33 awarded to landlord

What type of tenancy dispute was case 5033176?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5033176?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12117900-Tribunal_Order_Redacted.pdf.

59 Ascot Avenue, Remuera, Auckland 1050 Tenancy Tribunal Case 5033176 — Rent arrears

Claims and awards in Tenancy Tribunal application 5033176 — net $208.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,071.43		Rent arrears
Water rates	$137.33		Water rates
Compensation (x2		$1,000.00	Compensation (x2
Total award	$1,208.76	$1,000.00
Net award	$208.76
Bond	$2,600.00
Total payable by Tenant to Landlord	$208.76

Claims and awards in Tenancy Tribunal application 5033176 — net $208.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,071.43		Rent arrears
Water rates	$137.33		Water rates
Compensation (x2		$1,000.00	Compensation (x2
Total award	$1,208.76	$1,000.00
Net award	$208.76
Bond	$2,600.00
Total payable by Tenant to Landlord	$208.76

Order

The Tribunal orders suppression of the tenant name and identifying details.
[The tenant/s] to pay A Grade Rental Homes Limited As Agent For Owner $208.76 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,600.00 ([Bond number suppressed]) immediately apportioned as follows: A Grade Rental Homes Limited As Agent For Owner, $208.76 [The tenant/s]: $2,391.24

Reasons

This was a continuation hearing. The first hearing was adjourned to join the first two agents for this tenancy.
The tenant application sought compensation of $29,978.88 and exemplary damages.
The final property manager has lodged a counterclaim for rent arrears, water outgoings, and compensation.
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.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Background
The tenancy commenced under Ray White Best Property Management as agent for David Xie. This change to Global Property Ltd T/A Global Property as agent for David Xie between 21 April 2023 and 16 November 2023. That agency ended with the sale of the property and a new owner, Pengfei Feng. The new owner appointed the final property manager, A Grade Rental Homes Limited who acted as agent for the new owner until the end of the tenancy.
The tenant was proactive in making some improvements for his benefit. Some are discussed below but there were others, such as a request (granted) for him to install a new kitchen tap that he wanted.
The tenancy ended via landlord notice as the owner intended to complete a development project.
There was an onsite issue after the tenancy regarding access by people (friends of the tenant) to remove items. Police attended at the time. That is not addressed in this order as the tenancy had ended by the time of that incident and the neither the landlord nor tenant were directly involved.

Should the tenant be compensated?

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, 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.
The cited grounds for compensation totalled five. I deal with the first two together and the others in turn. Garden rubbish and rodents / Garage ceiling and painting.
The tenant claimed that at the change of owners the exiting owner removed his items from their personal storage in the garage. Prior to that date it was accepted the garage was excluded from the tenancy and was to be used by the landlord for storage. Once the possessions had been removed, the tenant complained that rubbish and wet mattresses were left behind. The tenant complained of the strong smell of rodent faeces and urine.
The new owner did not assert any right to the garage space.
There is email traffic between the tenant and the new agent. There is a stand- off regarding responsibility for the problems with the garage.
It was cleaned up and improved by the tenant who said the ceiling was mouldy and the area was falling apart prior. Photos support this.
I do not consider the tenant should have been responsible for the cost of removal and any improvements to the garage area. Any pest problem for the tenant originating from there should have been addressed by the landlord at the time but this was overtaken by the subsequent remediation by the tenant.
However, given the garage was excluded from the tenancy any maintenance within that space is not something the tenant should be compensated for. The return on his efforts was additional space for his utilisation. Balancing the costs versus rewards, I do not find any specific compensation should be ordered here. Gutter maintenance.
In June 2022 the tenant reported the gutter was overflowing and sent the landlord a video. A plumber has been asked to look at it on 3 June and on 5 June the tenant said he would clean it himself. The landlord acknowledged the email and said it had noted for review at the August inspection and asked to be told if the situation got worse. On 19 June the tenant paid to have someone attend to the guttering without notice to the landlord.
The tenant unliterally engaged a contractor very shortly after notifying the landlord of the problem. The response of the landlord appears appropriate at the time and the decision of the tenant was his to make but it is not reasonable to revisit that over two years later and seek reimbursement. The claim is dismissed. Electricity power board.
The premises had a dated electricity arrangement. The tenant had an electric car and wanted to upgrade the arrangement to accommodate the greater electricity demand for recharging with a dedicated electric car charger.
The tenant claimed the electricity usage had existing problems. He emailed the property manager on 29 June 2022 to say the power tripping was getting worse.
The electricity power board was old. The tenant had sought approval to upgrade the electrical outlet to accommodate his electric vehicle. Permission was granted and the tenant arranged for an upgrade at his expense. There is some dispute as to whether some of the cost of the upgrade was due to an inherent deficiency in the existing electrical capacity. If so, should the landlord contribute towards the cost? Again, the tenant proceeded to engage a contractor and incur the cost without any prior written agreement from the landlord regarding any cost sharing. Whilst the tenant cited tripping issues that preceded the upgrade I am not convinced that these evidence any obligation on the landlord to revisit any contribution towards costs incurred by the tenant in his upgrade for recharging his car. Chattels claim.
The tenancy agreement listed the chattels fridge freezer, microwave, and washing machine. The tenant claims the new owner removed the fridge freezer. The tenant purchased a replacement after a lack of action by the landlord who was notified at the time. That notification was silent on the microwave and washing machine. It appears earlier discussion regarding the washing machine indicated the tenant had purchased his own and the one provided was in the garage but later removed.
Part of the problem during this change of ownership was a change in agency at the same time. Effectively, the impact of any chattel removal occurred during the new agency and ownership but was possibly caused by the previous owner.
I accept the landlord failed to resolve the missing chattel when appropriately notified. The tenant had to purchase a replacement and his claim of loss of frozen items after the contents were removed at the time appears plausible based on the sequence of events. I have determined compensation of $500.00 is a reasonable recognition of the adverse impact and the need for the tenant to acquire a replacement, as well as experiencing the entry of the people who uplifted the item. If there was better evidence to clearly link the previous owner with the people who entered and removed the chattels further orders may have been justified. Quiet enjoyment
While not expressly stated in the original application, it was clear that part of the tenant motivation for the application was the impact on him near the end of the tenancy. He raised issues with the landlord regarding the impact of owner geotechnical or site work. He claimed this was intrusive and noisy, reducing his quiet enjoyment. In an email dated 7 June 2024 he advised the landlord he was having to deal with a mess left by the contractors. The agent discussed compensation with the owner but advised the tenant by return email that no compensation would be offered because adequate notice was given and rent was overdue. That email cautioned an application to the Tribunal regarding the rent arrears may follow (the tenant responded that he was withholding rent as he was seeking compensation).
Section 38(2) RTA requires the landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. A prior notice of entry does not absolve the landlord from anu unreasonable impact on the tenant.
While it is reasonable for a tenant to expect some disruption as a tenancy ends, the nature and extent of the field work performed during the last phase of the tenancy will have adversely impacted his quiet enjoyment. Activities like machine drilling and hand auger hole would have been disturbing but also an interference with outdoor use of those areas.
I consider it is appropriate to award some compensation for the excessive interference with quiet enjoyment from June to the end of the tenancy. Having considered the submissions and evidence I have determined $500.00 compensation is appropriate.

Should exemplary damages be awarded?

The tenant claimed three unlawful acts by the landlord. I deal with each in turn. Illegal rent increase
The tenant claims the rent was illegally increased on 23 January 2024 as a new tenancy agreement was signed on 21 April 2023 (that making the rent increase before 12 months lapsed – see section 24 RTA). I do not find that to be the case in this instance. The new tenancy agreement carried over the existing terms from the previous and did not constitute a rent increase or a new tenancy. It is considered more a formalising of the terms by the incoming agent and the claim is dismissed. Termination without grounds
During this tenancy, landlords could not give a 90-day termination notice without a valid reason under s 51(1) or (2) Residential Tenancies Act 1986.
The tenancy ended via landlord notice to terminate, citing the reason of demolition. The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice (s 60AA RTA). Exemplary damages may be awarded, up to a maximum of $6,500.00 (s 60AA and Schedule 1A RTA).
The tenant was concerned that after his tenancy ended, occupancy of the premises occurred, that being inconsistent with the reason given of demolition. The landlord provided evidence of the intention and steps taken to demolish and redevelop that, and the neighbouring section, as one development project. There is written evidence of ongoing engagement between appropriate professionals and the local authority. The fact that the project has been delayed is of no consequence if I am satisfied that it the time of giving the notice the grounds cited were legitimate. Given the evidence, as well as the disruption caused by the owner engaging in related geotechnical testing during the tenancy, I am satisfied the owner had genuine intent at the time of the notice. Any subsequent decision to allow occupants, either as tenants or under some other permission or licence to occupy, does not invalidate that.
The claim is therefore dismissed. Retaliatory notice.
The tenant claimed the notice to terminate was retaliatory after an exchange of emails with the property manager regarding activities at the property that were disturbing his quiet enjoyment, as well as other historic issues.
Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
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 s 54(2), (3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
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.
I note the reluctance of the landlord to extend the tenant’s end date when requested. That appears somewhat inflexible but is not considered retaliatory as the notice predated such discussion. The application for retaliatory notice was well out of time to consider any striking out of the notice.
For the reasons already stated in dismissing the claim for termination without grounds (above), I consider the landlord was not motivated by any retaliatory intent in giving notice. The impacts on the tenant’s quiet enjoyment were mainly a result of the landlord conducting geotechnical testing as part of the intention to redevelop the land. This intention was as stated in the notice to terminate.
The claim is dismissed. Landlord application (A Grade Rental Homes Limited as agent for the owner)

Does the tenant owe rent and water rates?

The tenancy ended on 14 September 2024. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy are as ordered. The tenant accepted these claims.

Did the tenant comply with their obligations at the end of the tenancy?

The landlord claimed the tenant removed whiteware chattels at the end of the tenancy. Specifically, the fridge, microwave and washing machine were claimed. The landlord sought $3,836.00 compensation.
The issue of chattels was addressed above under the tenant application. The change in owner and agents during the tenancy has made it challenging for the landlord now to establish any legitimate claim to chattels supposedly in place since 2022. There is evidence of removal of chattels during the tenancy. The tenant emailed the landlord on 21 November 2023, telling it the previous owner, or people of his behalf, had entered the premises and removed the fridge. I heard from the agent that the owner was notified and the issue of chattels would have best been resolved at that time under the sale and purchase agreement. I was not presented with that to ascertain what contractual obligations vis-à-vis chattels existed between the vendor and purchaser, but regardless, it is clear the tenant was deprived of at least one major chattel and had to replace that himself after correctly notifying the landlord of the removal.
I dismiss the landlord’s claim for chattel replacement due to a lack of evidence to prove any tenant liability for the items claimed as missing at the end of the tenancy. Filing fee
Each applicant has had some success. They are to carry their own cost of filing. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, 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.
The tenant requested suppression in his application. While he has not enjoyed substantial success to justify suppression as of right, I consider he has raised a number of valid issues and has been a good tenant through what has been a confusing sequence of agents and owners. His proactive responsiveness to some issues or improvements has possibly hindered more success when later seeking compensation but reflect well on him as a tenant. I consider it is appropriate to grant suppression for the tenant.

Tenancy Tribunal case 5033176 — Rent arrears at 59 Ascot Avenue, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 5033176 — Rent arrears at 59 Ascot Avenue, Remuera, Auckland 1050

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenant be compensated?

Should exemplary damages be awarded?

Does the tenant owe rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenant be compensated?

Should exemplary damages be awarded?

Does the tenant owe rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions