What was Tenancy Tribunal case 5058408 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 5058408?

The reconciled net award was $680.00.

What type of tenancy dispute was case 5058408?

The primary dispute was 14-day notice. Related themes: Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5058408?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11202872-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5058408 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 5058408?

The reconciled net award was $680.00.

What type of tenancy dispute was case 5058408?

The primary dispute was 14-day notice. Related themes: Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5058408?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11202872-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5058408 — 14-day notice

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New Zealand Tenancy Tribunal Case 5058408 — 14-day notice | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord name and identifying details.
[The landlord/s] must pay [The tenant/s] compensation of $680.00 This amount to be deducted as the final weeks rent for the premises.
The application by the tenants for termination of the tenancy and further compensation is dismissed.
By way of declaration [The tenant/s] must allow [The landlord] and its contractors immediate access to the premises for the purposes of completing the repairs to the patio and re-instating the heat pump.

Reasons

The landlord and the tenants’ representative attended the hearing.
Unfortunately, the tenants’ representative filed application 5021128, which he was not entitled to do because he is not a party to the tenancy agreement.
However, because the tenants had provided written confirmation that they wished him to appear on their behalf and as the landlord agreed, I heard both applications.
On behalf of the tenants the representative sought termination of the tenancy, a refund of rent and return of the bond.
The landlord cross applied for access to the premises to allow completion of remedial work.
The tenancy was originally for a fixed term from 4/5/2023 to 2/5/2024 at $650.00 per week.
The landlord took over management of the premises on 22/3/2024.
On 20/5/2024 the tenancy was renewed for a further fixed term to 31/12/2024 at $680.00 per week with an extra tenant. Tenants claim

[The tenant/s] claim the landlord has entered the premises without consent or notice.
The tenants’ representative submitted that a contractor for the landlord assessed the external patio on 19/8/2024 for the extent of repairs needed to fix leaking into the lounge area of the premises.
In support of the claim the tenants’ representative provided email correspondence between himself and the landlord, a handwritten statement from the tenants, photographs of contractors’ tools and an unsigned statement from a tenant of the adjoining flat.
By email dated 24/9/2024 the tenants’ representative suggested that the contractors had been gaining access to inside of the premises without notice, had stored their equipment inside without permission and had disconnected the heat pump without notification.
Of particular concern to the tenants’ representative was the fact that the landlord had given the contractor a key to the premises which allowed them “unlimited access”.
As the tenants were not told about the extent of the work the representative firmly believed the patio was being completely refurbished to the detriment of the tenants’ use of and privacy in the property.
The fact that the contractor had disconnected the heat pump without notification the representative felt was a breach of healthy homes standards.
In response, the landlord confirmed that the tenants had been advised on 2/9 that a contractor would be starting work on 4/9/2024 and had had no further communication from the tenants until the representative’s email of 24/9/2024.
The landlord provided an email from the contractor about the order of events and interactions with the tenants.
The contractor confirmed that on 4/9/2024 one tenant advised they were moving out of the premises within a week.
Further the contractor advised due to adverse weather a staff member went on site on 9/9 and 10/9/2024 to clean up the edges on the patio and each time knocked on the door and was let in by a tenant.
The following day 11/9/2024 the contractor stated four staff removed and relayed a new membrane and were again let in by a tenant, who was the only one in the premises. The contractor disconnected the heat pump that day and left gear in an empty bedroom.
On 19/9/2024 the contractor noted that a staff member went to the premises to check for water ingress and when no one answered the door let himself in. He did not believe anyone had been at the premises in the previous eight days.
The landlord submitted and the contractor confirmed that the new membrane was fitted to the patio of Flat A and work completed by 1/10/2024.
Apart from removing their gear with the consent of the parties the contractor confirmed no further work had been undertaken on the patio of Flat B.
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.
I am persuaded by the evidence that the landlord’s contractor did not enter the premises at any time in breach of section 48.
My reasons for this are: a. For the entry on 4 September more than 24 hours prior notice in writing was given. There is no provision for the tenants to confirm their agreement in writing. b. For the entries on 9, 10, and 11 September consent to entry was given by a tenant at the premises. c. For the entry on 19 September the purpose was for an emergency to ascertain if water had leaked into the premises due to extensive rain. d. For the unrecorded date entry to remove tools this was with the agreement of the tenants’ representative.
The landlord has not committed an unlawful act.
Moreover, I consider the suggestion by the tenants’ representative that the repair of the patio was outside what was required to fix the leak and could be undertaken after the tenants left, that is four months after the problem arose, is without merit.

Should the tenancy be terminated?

The tenants’ representative submitted that the tenancy should be terminated from 4/9/2024 due to the breach by the contractors of the right of entry, and rent refunded from that date.
In response the landlord did not want the tenancy to end early.
The landlord provided emails on 7 & 12/8/2024 about the requirements for replacement tenants from one tenant who wished to purchase a property.
The landlord suggested all but one of the tenants had moved out on 6/9/2024 with the tenant who had purchased a property.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is capable of remedy the tenant must first serve a notice on the landlord requiring them to remedy the breach within at least 14 days and establish that the landlord has failed to do so.
I find there are no grounds to terminate the tenancy.
The tenants’ representative agreed he did not issue a 14 day notice.
The breach is one capable of remedy.
Although the landlord accepted that the contractor may have breached the right of entry, when they became aware of the issue via an email from the tenants’ representative, they had the contractor return the key.
In addition, the landlord has not had access to the premises since 25/9/2024 when this was refused by the tenants’ representative. Landlord’s claim

Is the landlord entitled to access?

[The landlord/s] wants access to the premises to allow the contractors to complete the sealing and repair of the patio.
In his email of 7 November 2024, the landlord’s contractor expressed concern about water damage occurring to the patio because the deck was unfinished.
On the other hand, the tenants’ representative by email of 24/9/2024 stated “No further authorisation is granted to enter inside of the premises to undertake any further work until the relevance of the work and access is stated and then agreed upon in writing.
A further email the following day confirmed this refusal extended to the external patio area.
A landlord may enter the premises during the tenancy 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 without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
I find the tenants have committed an unlawful act by unreasonably refusing consent to the landlord and landlord’s contractor to enter the premises to complete the work to the patio.
In the correspondence the landlord explained to the tenants’ representative that the assessment of the leak in the lounge had confirmed that the issue related to the patio needing repair.
It is unfortunate that this information appears not to have been communicated to the tenants at the time, which led ultimately to the dispute between the parties.

Should compensation and or exemplary damages be awarded?

As the landlord did not ask for exemplary damages, I do not need to consider these for the breach of section 48 by the tenants.
However, I have directed that the landlord and landlord’s contractors be allowed immediate access to the premises to complete the repairs to the patio, in particular to make it weathertight.
As I have found the landlord did not commit an unlawful act, exemplary damages are not available to the tenants.
However, in the circumstances I consider it reasonable to award some compensation to them.
My reason for this is that I consider their quiet enjoyment in the use of the premises has been affected by the contractor not advising in advance of their intention to attend to do work, leaving tools in the premises and using the facilities.
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) Residential Tenancies Act 1986.
I have set the compensation at the equivalent of one weeks rent. The amount would likely have been higher had the tenants’ representative taken any steps to mitigate loss, which could easily have been accomplished as the evidence supports all the tenants had vacated the premises by 19 September 2024.
As the tenancy has not ended, I am unable to deal with the issue of refund of the bond.
No filing fees are awarded because both parties have been partly successful, and the filing fees effectively cancel each other out.
Suppression is granted to the landlord because they have been successful with the application.
Despite having been only partly successful I consider it is also reasonable to suppress the tenants’ names because of the circumstances in which the application was made.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord name and identifying details.
[The landlord/s] must pay [The tenant/s] compensation of $680.00 This amount to be deducted as the final weeks rent for the premises.
The application by the tenants for termination of the tenancy and further compensation is dismissed.
By way of declaration [The tenant/s] must allow [The landlord] and its contractors immediate access to the premises for the purposes of completing the repairs to the patio and re-instating the heat pump.

Reasons

The landlord and the tenants’ representative attended the hearing.
Unfortunately, the tenants’ representative filed application 5021128, which he was not entitled to do because he is not a party to the tenancy agreement.
However, because the tenants had provided written confirmation that they wished him to appear on their behalf and as the landlord agreed, I heard both applications.
On behalf of the tenants the representative sought termination of the tenancy, a refund of rent and return of the bond.
The landlord cross applied for access to the premises to allow completion of remedial work.
The tenancy was originally for a fixed term from 4/5/2023 to 2/5/2024 at $650.00 per week.
The landlord took over management of the premises on 22/3/2024.
On 20/5/2024 the tenancy was renewed for a further fixed term to 31/12/2024 at $680.00 per week with an extra tenant. Tenants claim

[The tenant/s] claim the landlord has entered the premises without consent or notice.
The tenants’ representative submitted that a contractor for the landlord assessed the external patio on 19/8/2024 for the extent of repairs needed to fix leaking into the lounge area of the premises.
In support of the claim the tenants’ representative provided email correspondence between himself and the landlord, a handwritten statement from the tenants, photographs of contractors’ tools and an unsigned statement from a tenant of the adjoining flat.
By email dated 24/9/2024 the tenants’ representative suggested that the contractors had been gaining access to inside of the premises without notice, had stored their equipment inside without permission and had disconnected the heat pump without notification.
Of particular concern to the tenants’ representative was the fact that the landlord had given the contractor a key to the premises which allowed them “unlimited access”.
As the tenants were not told about the extent of the work the representative firmly believed the patio was being completely refurbished to the detriment of the tenants’ use of and privacy in the property.
The fact that the contractor had disconnected the heat pump without notification the representative felt was a breach of healthy homes standards.
In response, the landlord confirmed that the tenants had been advised on 2/9 that a contractor would be starting work on 4/9/2024 and had had no further communication from the tenants until the representative’s email of 24/9/2024.
The landlord provided an email from the contractor about the order of events and interactions with the tenants.
The contractor confirmed that on 4/9/2024 one tenant advised they were moving out of the premises within a week.
Further the contractor advised due to adverse weather a staff member went on site on 9/9 and 10/9/2024 to clean up the edges on the patio and each time knocked on the door and was let in by a tenant.
The following day 11/9/2024 the contractor stated four staff removed and relayed a new membrane and were again let in by a tenant, who was the only one in the premises. The contractor disconnected the heat pump that day and left gear in an empty bedroom.
On 19/9/2024 the contractor noted that a staff member went to the premises to check for water ingress and when no one answered the door let himself in. He did not believe anyone had been at the premises in the previous eight days.
The landlord submitted and the contractor confirmed that the new membrane was fitted to the patio of Flat A and work completed by 1/10/2024.
Apart from removing their gear with the consent of the parties the contractor confirmed no further work had been undertaken on the patio of Flat B.
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.
I am persuaded by the evidence that the landlord’s contractor did not enter the premises at any time in breach of section 48.
My reasons for this are: a. For the entry on 4 September more than 24 hours prior notice in writing was given. There is no provision for the tenants to confirm their agreement in writing. b. For the entries on 9, 10, and 11 September consent to entry was given by a tenant at the premises. c. For the entry on 19 September the purpose was for an emergency to ascertain if water had leaked into the premises due to extensive rain. d. For the unrecorded date entry to remove tools this was with the agreement of the tenants’ representative.
The landlord has not committed an unlawful act.
Moreover, I consider the suggestion by the tenants’ representative that the repair of the patio was outside what was required to fix the leak and could be undertaken after the tenants left, that is four months after the problem arose, is without merit.

Should the tenancy be terminated?

The tenants’ representative submitted that the tenancy should be terminated from 4/9/2024 due to the breach by the contractors of the right of entry, and rent refunded from that date.
In response the landlord did not want the tenancy to end early.
The landlord provided emails on 7 & 12/8/2024 about the requirements for replacement tenants from one tenant who wished to purchase a property.
The landlord suggested all but one of the tenants had moved out on 6/9/2024 with the tenant who had purchased a property.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is capable of remedy the tenant must first serve a notice on the landlord requiring them to remedy the breach within at least 14 days and establish that the landlord has failed to do so.
I find there are no grounds to terminate the tenancy.
The tenants’ representative agreed he did not issue a 14 day notice.
The breach is one capable of remedy.
Although the landlord accepted that the contractor may have breached the right of entry, when they became aware of the issue via an email from the tenants’ representative, they had the contractor return the key.
In addition, the landlord has not had access to the premises since 25/9/2024 when this was refused by the tenants’ representative. Landlord’s claim

Is the landlord entitled to access?

[The landlord/s] wants access to the premises to allow the contractors to complete the sealing and repair of the patio.
In his email of 7 November 2024, the landlord’s contractor expressed concern about water damage occurring to the patio because the deck was unfinished.
On the other hand, the tenants’ representative by email of 24/9/2024 stated “No further authorisation is granted to enter inside of the premises to undertake any further work until the relevance of the work and access is stated and then agreed upon in writing.
A further email the following day confirmed this refusal extended to the external patio area.
A landlord may enter the premises during the tenancy 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 without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
I find the tenants have committed an unlawful act by unreasonably refusing consent to the landlord and landlord’s contractor to enter the premises to complete the work to the patio.
In the correspondence the landlord explained to the tenants’ representative that the assessment of the leak in the lounge had confirmed that the issue related to the patio needing repair.
It is unfortunate that this information appears not to have been communicated to the tenants at the time, which led ultimately to the dispute between the parties.

Should compensation and or exemplary damages be awarded?

As the landlord did not ask for exemplary damages, I do not need to consider these for the breach of section 48 by the tenants.
However, I have directed that the landlord and landlord’s contractors be allowed immediate access to the premises to complete the repairs to the patio, in particular to make it weathertight.
As I have found the landlord did not commit an unlawful act, exemplary damages are not available to the tenants.
However, in the circumstances I consider it reasonable to award some compensation to them.
My reason for this is that I consider their quiet enjoyment in the use of the premises has been affected by the contractor not advising in advance of their intention to attend to do work, leaving tools in the premises and using the facilities.
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) Residential Tenancies Act 1986.
I have set the compensation at the equivalent of one weeks rent. The amount would likely have been higher had the tenants’ representative taken any steps to mitigate loss, which could easily have been accomplished as the evidence supports all the tenants had vacated the premises by 19 September 2024.
As the tenancy has not ended, I am unable to deal with the issue of refund of the bond.
No filing fees are awarded because both parties have been partly successful, and the filing fees effectively cancel each other out.
Suppression is granted to the landlord because they have been successful with the application.
Despite having been only partly successful I consider it is also reasonable to suppress the tenants’ names because of the circumstances in which the application was made.

Tenancy Tribunal case 5058408 — 14-day notice

At a glance

Tenancy Tribunal case 5058408 — 14-day notice

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is the landlord entitled to access?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is the landlord entitled to access?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord enter the premises without consent?

Should the tenancy be terminated?

Is the landlord entitled to access?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord enter the premises without consent?

Should the tenancy be terminated?

Is the landlord entitled to access?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions