Published tribunal order
Tenancy Tribunal case 5049368 — Smoke alarms
Decided 25 Feb 2025 · Published 25 Feb 2025 · Application 5049368
- Smoke alarms
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 Landlord name and the tenancy address.
- The landlord must immediately install a compliant smoke alarm on the ground floor of the tenancy premises in a location where cooking activities in the kitchen will not set it off.
- Maraki Kepa is liable to compensate the landlord for the cost of one smoke alarm and installation up to a maximum of $100.00.
- The tenancy of Maraki Kepa at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 5:00pm on Thursday 20 March 2025 (“the final termination date”).
- The order dated 16 December 2024 under the same application number 5049368 is incorporated into this order.
- Maraki Kepa must pay:- a. $527.00 on Friday 28/02/2025, being $500.00 for rent and $27.00 for the filing fee. b. $500.00 for weekly rent on Friday 07/03/2025. c. $500.00 for weekly rent on Friday 14/03/2025.
- If the tenant fails to pay rent within 1 working day of the due dates in the order above: a. The tenancy at [Tenancy address suppressed] will terminate and the landlord will have immediate possession of the premises.
- If the tenant fails to pay the filing fee within 1 working day of the due date, the filing fee will be payable immediately.
Reasons
- The landlords’ representatives and the tenant attended the second hearing on 17 February 2025.
- The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
- This is a fixed term tenancy. The term ends on 27 June 2025.
- The landlord alleges that the tenant has breached the tenancy agreement or the Residential Tenancies Act 1986 (RTA) by:- a. Removing or tampering with smoke alarms in the unit; b. Smoking inside the unit including the smoking of marijuana; and c. Not keeping the unit reasonably clean and tidy during the tenancy.
- The landlord initially also applied to terminate the tenancy due to unauthorised pets at the unit. The landlord says this is no longer needed as the pets have been removed.
- I made an order on 16 December 2024 (after the first hearing) which warned the tenant that it is unlawful to remove or tamper with smoke alarms inside tenancy premises.
What does the law say?
- The Residential Tenancies Act says that the Tribunal may terminate a tenancy if:- a. There has been a breach of the RTA or of the tenancy agreement, and b. Because of the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
- If the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within a reasonable period (of not less than 14 days) and prove that the tenant has failed to do so; s56(1)(b) RTA.
- If the breach is not capable of remedy, (it cannot be undone), the landlord does not have to give a breach notice, but the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
- The RTA also says that a tenant (the person named on the tenancy agreement) is responsible for the actions of any person who is in the premises with the tenant’s permission; s41 RTA.
Should the tenancy be terminated?
- The landlord has emailed the tenant notices which clearly specify the breaches and advise her these must be remedied within 14 days.
- My decisions on each of the alleged breaches are below. Removing or tampering with smoke alarms
- The law requires there to be a qualifying smoke alarm installed on each storey or level of tenancy premises and inside or within 3 metres of the entrance to bedrooms. 1
- This is a two-storey house. There was one smoke alarm downstairs in the living area, and one smoke alarm upstairs in the hallway outside the two bedrooms, at the start of the tenancy on 28 June 2024.
- Photographs prove that neither of the two smoke alarms were in place at the landlord’s inspection on 9 October 2024. A breach notice was issued the next day requiring these to be installed again and fully operational. Neither of the alarms were back in place by the required remedy date which was 24 October 2024.
- I made it clear to the tenant during the first hearing on 16 December 2024 that smoke alarms must be in place and made a declaration to this effect.
- The upstairs smoke alarm was back in place at the next landlord inspection on 8 January 2025. The landlord sent a letter to the tenant on 10 January 2025 saying the downstairs alarm was still missing and must be put back up.
- The landlord says the downstairs alarm was still not in place on 24 January 2025 (no photographs have been provided). Ms Kepa said at the second hearing that she cannot find the other smoke alarm to put it back up. She had not told the landlord this before.
- The landlord has proven that the tenant or someone at the premises has breached the legal obligation not to remove or tamper with smoke alarms in tenancy premises. 2 As I said in my first decision, this is a serious matter 1 Regulation 5 of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. because of the risk it causes to people’s lives and to property, and a tenant can be fined up to $4,000.00.
- The landlord has also proven that this serious breach of the Act was not remedied within the reasonable period allowed by the landlord.
- I must consider whether the nature or extent of the breach means it would be inequitable to refuse to terminate the tenancy.
- I said in the hearing that I would not terminate the tenancy immediately.
- Having now reviewed all evidence carefully after the hearing, I have decided that this is a breach so serious that it would be inequitable to refuse to terminate the tenancy.
- My reasons are:- a. The landlord has sent the tenant at least three emails advising that the smoke alarms must be put back up. 3 b. The issue was discussed at the first hearing on 16 December 2024 and I made a declaration that it is unlawful to remove or tamper with smoke alarms inside tenancy premises. c. Despite this, the downstairs smoke alarm was still not in place at the inspection on 8 January 2025. The tenant could have purchased a new alarm and put it up (a long-life, photoelectric smoke alarm costs about $30.00) or notified the landlord that she could not find it. d. I accept the tenant’s oral evidence that she was out of town in October 2024 when the smoke alarms were removed. However, she was emailed the breach notice on 10 October 2024 so was made aware of the issue and the law makes it clear that a tenant is responsible for the actions of anyone at the premises with their permission. Smoking or smoking marijuana inside the unit
- The landlord says that the tenant or others at the premises with her permission have smoked marijuana inside the unit.
- The landlord has provided photographs of what it alleges is a container of marijuana found inside the unit on 9 October 2024, and a partially smoked cigarette or joint and a device used for smoking (a bong) found inside the unit on 24 October 2024. 2 A tenant must not cause or permit interference with any means of escape from fire (which includes smoke alarms); see section 40(2)(ab) RTA. 3 Notice of breach on 09/10/2024; After inspection letter on 29/10/2024; After inspection letter on 10/01/2025.
- It is a breach of the RTA to use premises, or permit them to be used, for any unlawful purpose; s40(2)(b) RTA.
- It is illegal to possess or use cannabis (marijuana) in New Zealand except for medicinal or palliative purposes with a prescription or certificate and from an approved supplier. See Misuse of Drugs Act 1975. There is no evidence that this exemption applies in this case.
- The tenant accepts that she smoked marijuana inside the unit at the start of this tenancy but says she has not done so for a long time. She says that videos she posted on social media were taken at that earlier time.
- The tenant has admitted the breach.
- I am satisfied this is a breach of the RTA that could not be remedied. It could not be undone.
- My decision is that the smoking of any substance inside tenancy premises in combination with the removal of smoke alarms, is a serious breach. It dramatically increases the risk of fire. This is a two-storey property, and the bedrooms are upstairs. A fire would endanger life as well as property and insurance cover.
- The nature of this breach means it would be inequitable to refuse to terminate the tenancy. Reasonably clean and tidy premises
- The landlord has issued the tenant notices to remedy breaches of the requirement for a tenant to keep premises reasonably clean and reasonably tidy; section 40(1)(c) RTA.
- I do not need to decide this issue as I have already determined that it would be inequitable to refuse to terminate the tenancy.
- However, for completeness, I record that I do not find this breach to be proven.
- The photographs provided show no significant cause for concern. Generally, unless a lack of cleanliness or maintenance is likely to cause serious damage if not attended to, a tenant should be left to live as they choose. Minor damage can be remedied either by way of a work order requiring it to be fixed or authorising the landlord to do so, or at the end of the tenancy. Landlord to immediately replace the downstairs smoke alarm
- In my view, smoke alarms are so important a landlord should not wait for a tenant to replace them. It is safer for the landlord to arrange for this to happen and to seek compensation for the cost of this from the tenant.
- For this reason, I have made an order requiring the landlord to immediately replace the downstairs smoke alarm and that the tenant is liable for the reasonable cost of this (up to $100.00 including installation). The tenant said the location of the alarm meant it goes off when cooking. The landlord should seek expert advice on the best location to avoid this happening. Date for termination of the tenancy
- I have made an order that the tenancy will terminate at the latest at 5:00pm on Thursday 20 March 2025.
- The parties are free to agree together on a different final termination date if they wish to.
- The tenant must pay the weekly rent due every Friday until the tenancy ends. If any of these payments are more than 1 working day late, the tenancy will terminate, and the landlord will be entitled to immediate possession of the premises.
- The name of the landlord is suppressed as it has succeeded with the application.