What was the outcome of Tenancy Tribunal case 5041528?

The tribunal order states: The tenancy of Yonggang Qi and Hongli Chen at 175 Abbotts Way, Remuera,

How much money was awarded in case 5041528?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $4,900.00 awarded to landlord

What type of tenancy dispute was case 5041528?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5041528?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11245055-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5041528?

The tribunal order states: The tenancy of Yonggang Qi and Hongli Chen at 175 Abbotts Way, Remuera,

How much money was awarded in case 5041528?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $4,900.00 awarded to landlord

What type of tenancy dispute was case 5041528?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5041528?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11245055-Tenancy_Tribunal_Order.pdf.

175 Abbotts Way, Remuera, Auckland 1050 Tenancy Tribunal Case 5041528 — Rent arrears

Claims and awards in Tenancy Tribunal application 5041528 — net $2,127.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 05 January 2025	$4,900.00	Rent arrears to 05 January 2025
Reimbursement of filing fee	$27.00	Reimbursement of filing fee
Net award	$2,127.00
Total payable by Tenant to Landlord	$2,127.00

Claims and awards in Tenancy Tribunal application 5041528 — net $2,127.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 05 January 2025	$4,900.00	Rent arrears to 05 January 2025
Reimbursement of filing fee	$27.00	Reimbursement of filing fee
Net award	$2,127.00
Total payable by Tenant to Landlord	$2,127.00

Order

The tenancy of Yonggang Qi and Hongli Chen at 175 Abbotts Way, Remuera, Auckland 1050 is terminated with retrospective effect from at 11:59pm on 05 January 2025.
Yonggang Qi and Hongli Chen must pay T & S Family Trust Shaona Kong $2,127.00 immediately being rent arrears to 05 January 2025, reimbursement of the filing fee, less the bond, as calculated in the table below:
The Bond Centre is to pay the bond of $2,800.00 (6523520-011) to T & S Family Trust Shaona Kong immediately.
The tenant’s claim that the landlord breached the Healthy Homes Heating Standard is upheld.
The tenant’s claims that: a. The landlord breached the tenant’s right to quiet enjoyment of the premises; b. The landlord failed to ensure the premises had working smoke alarms; and c. The tenancy agreement included a term that the tenancy could be terminated after 6 months if the premises were found to not be in the Glendowi College zone, are dismissed.

Reasons

A representative from Focus Rental attended the hearing for the landlord. The tenant attended the hearing via telephone.
The tenant has applied for early termination of the fixed term tenancy, breach of the Healthy Homes Standard, breach of the obligation to ensure the premises has working smoke alarms, and breach of the tenant’s right to quiet enjoyment of the premises. The tenant has said the only remedy sought is early termination of the tenancy.
The landlord has applied for rent arrears and rent to the expiry date of the fixed term tenancy agreement. A. RELEVANT LEGAL CONSIDERATIONS:
I begin by noting that with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. The party bringing the claim must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. B. THE TENANT’S CLAIMS
The relevant background facts are as follows: a. The tenant says that in early February 2024, he approached Glendowie College (“GC”) about the possibility of enrolling his son as an international student. The tenant says GC said his son would first need to attend an English language school for a period of 3 months; b. Shortly after this, the tenant’s was accepted as an international student at Auckland Grammar School (“AGS”) and commenced as a student for the 2024 school year; c. The tenant said he met with the landlord at the premises on or about 08 February 2024. The tenant said that during this meeting, the landlord told him that the premises were in zone for GC. The tenant said he and the landlord drove together from the premises to GC to show him the school; d. The landlord’s representative said that the landlord did not tell the tenant at the first meeting that the premises was in zone for GC; e. The tenant says that he suggested a term of 6 months to the landlord. The tenant said the landlord insisted on a 12-month fixed term. The tenant said that he agreed on a 12-month fixed term tenancy with the proviso that the tenancy would only continue past 6 months if the premises where in the GC zone; f. On 09 February 2024, the parties signed a tenancy agreement (the “Tenancy Agreement”) which provides the tenancy is for a fixed term starting on 12 February 2024 and ending on 11 February 2025. The proviso referred to in paragraph e. above is not recorded in the Tenancy Agreement; g. The tenant says that in late August 2024, he obtained a work permit and his son became eligible to enrol in a local school as a domestic student; h. The tenant provided a text message dated 29 August 2024, which he says is from the landlord. This message was translated by the translator as follows: ... Our property is in the glendowie school zone. This school is really pretty good next year [a few words omitted] next year once you have your visa varied you could consider changing to this school only for your consideration i. On or about 20 September 2024, the tenant asked to be released early from the fixed-term tenancy. The landlord refused; j. The tenant says that GC was not his first choice for his son. The tenant said that in October 2024, AGS asked him if he wished to enrol his son as an international student for the following year. The tenant says this prompt from AGS and the landlord’s refusal to release him from the fixed-term tenancy, prompted him to enquire with GC about enrolment as a domestic student for 2025; k. The tenant says when he did so, he was advised by GC that the premises were out of the GC school zone; l. The landlord says that after the tenant advised that he wished to be released early from the fixed term tenancy, the landlord started advertising the premises and that if the landlord had found a suitable tenant during time, the landlord would have allowed the tenant to end the fixed term tenancy early; m. During the hearing, the translator translated a number of messages. Unfortunately, many of the messages were not date or time stamped. One of the messages appears to have been from the tenant to the landlord and sent after the found out that the premises were not in the GC zone: Our address is not in glen dowie school zone. my view is that I have met the term of staying for the full 6 months as it is not within the glen dowie school zone. my child could not enrol and I could cancel the agreement and move out as per right. n. The landlord replied as follows: No point in our discussion about gd school zone because your child has been going to school at Auckland grammar o. The tenant responded: This is the point. This was the pre requisite when we signed the rental agreement back then because there was still a chance that we would go to glendowie college You have promised the glendowie college school zone and we only signed contract because of that and we double and triple checked ... p. On or about 15 November 2024, the tenant moved out of the premises and returned the keys. The tenant said he stayed with a friend for a period of time and then he and his son returned to China. The tenant advised that they are planning to return to New Zealand before the start of term 1 this year; q. Following questioning, the tenant confirmed that they were always planning to return to China for the summer school holidays; r. The rent was paid by the tenant up to and including 17 November 2024. a) Did the agreement between the parties include a condition that if the premises were not in the GC zone, the tenancy could be terminated after 12 months?
The Tenancy Agreement states that the tenancy is for a fixed term. The tenant says that he agreed with the landlord that if the premises were not in the GC zone then the tenancy could be terminated after 6 months. The tenant was asked why this was not included in the written agreement. The tenant said he asked for it to be included in the written agreement, but the landlord did not agree.
The landlord says there was no such term. The landlord says that the tenant wishes to end the fixed term tenancy early because he wished to move to the AGS zone and enrol his son as a domestic student at AGS.
As set out in paragraph 4 above, it is for the party bringing the claim to prove the claim on the balance of probabilities. The tenant has not satisfied me that the parties agreed to this term.
This claim is dismissed. b) Did the landlord misrepresent the school zone to the tenant and, if so, should the tenancy be terminated early in accordance with section 78(1)(g) of the RTA?
Section 78(1)(g) of the RTA provides that the Tribunal may set aside a tenancy agreement in whole or part where it has been “induced by ... misrepresentation, or mistake ...”.
Section 37 (1)A of the Contract and Commercial Law Act 2017 provides that a party to a contract may cancel it if: (a)the party has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to the contract; ... (2)If subsection (1)(a), (b), or (c) applies, a party may exercise the right to cancel the contract if, and only if,— (a)the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to the cancelling party; or (b)the effect of the misrepresentation or breach of the contract is, or, in the case of an anticipated breach, will be,— (i)substantially to reduce the benefit of the contract to the cancelling party; or (ii)substantially to increase the burden of the cancelling party under the contract; or (iii)in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.
I find that prior to entering into the Tenancy Agreement, the landlord did tell the tenant that the premises were in the GC school zone. I also accept that this was incorrect. I find there was a misrepresentation. However, to terminate the Tenancy Agreement early, I must be satisfied that the parties agreed either explicitly or impliedly that this was an essential term of the contract or that it would substantially reduce the benefit /increase the burden to the tenant.
I do not find that the premises being in the GC school zone was an essential term of the Tenancy Agreement for the tenant. At the time of entering into the Tenancy Agreement, the tenant had decided not to enrol at GC because GC required his son to complete a 3-month English language course. The tenant had also enrolled his son in AGS.
That said, I find that the misrepresentation did substantially reduce the benefit of the Tenancy Agreement to the tenant. However, as the tenant did have any intention to enrol his son at GC during 2024, I do not accept that it was necessary to terminate the fixed term in November 2024. I take judicial notice of the fact where a domestic student is in a school zone, apart from in limited circumstances, the school must accept that student. While a school may request that domestic students enrol by a certain date, a student who moves into the area after that date will usually be accepted by the school.
The GC 2025 school year is due to start on 29 January 2025. 1
I terminate the tenancy with effect from 11:59pm on 5 January 2025. I consider this period is reasonable to allow the tenant to find a new premise in the GC school zone. I note this is a moot point as the tenancy has already ended. c) Should the tenancy be terminated earlier than 01 January 2025 in accordance with section 66(1) of the RTA?
Section 66(1) of the RTA provides that the Tribunal may reduce a fixed term tenancy 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 tenant has argued that the tenancy should be terminated early because : a. The landlord failed to provide working smoke alarms; b. The tenancy did not comply with the Healthy Homes Heating Standard; 1 https://www.gdc.school.nz/calendar/ retrieved on 14 January 2025. c. The noise from the unit upstairs occupied by the landlord interfered with his son’s ability to study and affected their sleep; and d. There was rubbish near a window which caused a bad smell.

Did the landlord fail to provide working smoke alarms?

Section 45(1)(ba) of the RTA requires landlords to comply with all requirements in relation to smoke alarms made under section 138A of the RTA.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
Regulation 5 requires that there be at least 1 qualifying smoke alarm installed: a. Within a sleeping space (bedroom); or b. Within 3 metres of the entrance to a sleeping space; and c. On each story or level of the premises.
The tenant acknowledged that there was a smoke alarm in the premises. However, he said he believed the smoke alarm was not working because the light was not flashing. The landlord said that is incorrect. The landlord said the light only goes on when the alarm is not working.
The tenant has not satisfied me that the landlord failed in its obligation to provide working smoke alarms. This claim is dismissed.

Did the landlord fail to comply with the Healthy Homes Standards?

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019. The tenant said that the landlord has failed to comply with the Healthy Homes Heating Standard.
Compliance dates for the Healthy Homes Standards vary depending on the tenancy: a. For private rentals: i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The Healthy Homes Heating Standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The Healthy Homes Heating Standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/.
The premises did not contain a heater that meet the requirement of the Healthy Homes Heating Standard.
The premises are a separate self-contained unit consisting of two bedrooms, a kitchen, a living area and a bathroom. Upstairs is another unit. At the hearing, the landlord provided a healthy homes report for the two units as one premise. The report provides that the Healthy Homes Heating Standard was met: there was a heating in the upstairs unit.
This is incorrect, if the premises (the two-bedroom unit) is being rented as a separate unit then the Healthy Homes Standards apply to it separately. I find that by failing to provide a heater for the premises the Healthy Homes Heating Standard has been breached. The tenant is not seeking damages but early termination of the tenancy.
This obligation could have been remedied easily. There is no evidence that the breach of this obligation was brought to the landlord’s attention by the tenant. I do not consider it warrants termination of the tenancy under section 66(1) of the RTA. Did the landlord interfere with the tenant’s right to reasonable enjoyment of the premises by: a) making excessive noise; and/or b) storing rubbish outside the tenant’s window:
Section 38(2) of the RTA provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
The word “quiet” is used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”: Kenny v Preen [1963] 1 QB 499. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
The premises is a unit contained on the ground floor of the house. During the tenancy, the landlord lived upstairs in the main house. The tenant said that landlord would play karaoke once or twice a month and that it would finish around 8pm, sometimes until 10pm in the evening. The tenant said the landlord would play the piano from 8.30pm to 9pm each evening. The tenant said this interfered the karaoke and the piano playing interfered with his son’s ability to study and their ability to sleep.
The tenant said that when the noise occurred, he would send a WeChat message to the landlord who would address it if the landlord saw the message. The landlord provided one of these message exchanges at the hearing in which the landlord said she was out but would tell her child to stop.
I accept that there was excessive noise occasionally from the upstairs unit. However, on the basis of probabilities, I do not consider that this amounted to breach of section 38(2) of the RTA. I consider if it had been a significant issue, the tenant would be able to refer to conversations or documentary evidence where he had explained the significant of the issue to the landlord.
This claim is dismissed.
The tenant said that at the start of the tenancy the landlord kept rubbish outside his bedroom window, and this resulted in a bad smell. The tenant said he asked the landlord to move the rubbish and the landlord did so.
Given that the landlord moved the rubbish when the tenant requested her to do so, I do not find that this amounts to a breach of quiet enjoyment of the premises. This claim is also dismissed. C. THE LANDLORD’S CLAIMS
The landlord has claimed rent arrears from for the period from 18 November 2024 to 11 February 2024.
As set out above, the tenancy is terminated retrospectively with effect from 01 January 2024.
Parties to a tenancy agreement have an obligation to mitigate their losses. Section 49 of the Residential Tenancies Act 1986 (RTA) provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The landlord’s obligation is to take all reasonable steps to mitigate his losses. 2
At the hearing, the landlord’s representative advised that the landlord has continuously advertised the premises since the tenant notified that he wished to end the tenancy early. Initially the premises were advertised for an increased price. However, at the date of the hearing, the landlord had reduced the amount of rent. I consider the landlord has taken reasonable steps to mitigate its losses and award rent from 18 November 2024 to 05 January 2025. D. OTHER MATTERS
The tenant has applied for suppression of his name. Both parties have applied for reimbursement of the filing fee.
The tenant has had some success with his claims. However, he has not been wholly or substantially successful. For this reason, I dismiss the tenant’s application for suppression and reimbursement of the filing fee.
The landlord has been substantially successful with her claim. For this reason, I order the tenant to reimburse the landlord for the filing fee.

Tenancy Tribunal case 5041528 — Rent arrears at 175 Abbotts Way, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 5041528 — Rent arrears at 175 Abbotts Way, Remuera, Auckland 1050

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to provide working smoke alarms?

Did the landlord fail to comply with the Healthy Homes Standards?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to provide working smoke alarms?

Did the landlord fail to comply with the Healthy Homes Standards?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions