What was the outcome of Tenancy Tribunal case 5065549?

The tribunal order states: The applications are dismissed.

How much money was awarded in case 5065549?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5065549?

The primary dispute was Leaks. Related themes: Cleanliness, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 5065549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11317817-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5065549?

The tribunal order states: The applications are dismissed.

How much money was awarded in case 5065549?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5065549?

The primary dispute was Leaks. Related themes: Cleanliness, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 5065549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11317817-Tenancy_Tribunal_Order.pdf.

23 Kestrel Heights, Arkles Bay, Whangaparaoa 0932 Tenancy Tribunal Case 5065549 — Leaks

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23 Kestrel Heights, Arkles Bay, Whangaparaoa 0932 Tenancy Tribunal Case 5065549 — Leaks | TenantCheck

Order

The applications are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. There are four broad claims relating to quiet enjoyment, notice for maintenance, misrepresentation of tenancy length and potential car damage.

BACKGROUND

The parties entered into a periodic tenancy commencing on 9 March 2024.
The premises are a free-standing house. The landlord lives in the top level, and the tenant in the level below.
On 21 October 2024 the landlord gave 90 days’ notice ending the periodic tenancy, on the basis that the landlord or a family member required the premises as a place of residence. In particular, the landlord’s son was to move into the tenancy premises.
On 8 November 2024 the tenant gave the landlord 28 days’ notice terminating the tenancy.
The tenancy has ended, and the tenant filed these claims with the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
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.

ANALYSIS

The tenant presents four broad claims, which I will now consider in turn. Breach of quiet enjoyment
The tenant seeks exemplary damages for a breach of her quiet enjoyment.
The tenant states that when she returned from an overseas visit around July, she found that when someone was using taps in the landlord’s upstairs dwelling, the hot water in the tenancy taps would get very hot, and would be scolding, and there would also be a change of water pressure until the upstairs taps were turned off. The tenant states that the landlord had long known that the whole house needed replumbing, but she did not want to do that given the cost.
The second issue for the tenant was being woken from about 5:45am in the mornings, with heavy footsteps upstairs every 30-odd minutes, which affected her ability to get back to sleep. The tenant considers this an intrusion.
The third issue was a complaint from the landlord that the tenant not burn incense, because the landlord found it to burn her eyes.
The fourth issue relates to an inspection where the landlord said she was “concerned about your cat” which made her feel uncomfortable, as the landlord asked her how often she cleaned the cat litter tray. The tenant does not consider that the landlord was otherwise taking notice of the state of the flat and making this off on an inspection sheet.
In response the landlord states that she was not aware of any fluctuation in water delivery, until this was raised by the tenant on 8 August 2024. The landlord states that she contacted plumbers, who advised that these fluctuations would be expected given the plumbing system, but the only way to avoid that would be to replumb the property. But the parties agreed that the landlord would avoid using the kitchen taps between 8:30 and 9:00am. However the plumber did do some work hoping it would resolve the issue, but that did not turn out to be effective. The landlord confirmed that there is no separate water supply to the tenancy, but the tenant is not charged for water separately, it is an all-inclusive rental.
In terms of the footsteps, the landlord states that she was aware there would be footsteps heard in the tenancy below, and this was raised with the tenant before she agreed to rent the premises, and the tenant advised she accepted that. However, the landlord described what she did to try to limit noise, such as wearing socks inside and purchasing and moving rugs to provide some noise reduction.
As it relates to the incense the landlord states she could smell that in her dwelling, and she has a reaction to it.
With regard to the cat tray, the landlord states the tenant had a fully indoor cat. The landlord agrees that she did ask if the litter tray was changed regularly. Analysis
The tenant seeks exemplary damages for a breach of her quiet enjoyment.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In this case the tenant claims that the unlawful act relates to a breach of her quiet enjoyment. Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that 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.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment.
Taking the above legal considerations into account, I conclude that this claim has not been established for these reasons. a. Plumbing. There is no evidence before me that the plumbing in this dwelling does not meet the necessary legal / building standards. I accept when water is used in the upstairs dwelling, that would result in pressure and temperature changes downstairs. Both levels of the house share the same plumbing system, there is no requirement in law for the systems to be separate in a tenancy. It is very common in dwellings that pressure and temperature fluctuations occur when two or more taps are used at the same time, there is nothing unusual in what the tenant describes. Given what the tenant describes is a usual common with plumbing in New Zealand, I cannot see how the landlord has interfered with any reasonable quiet enjoyment expectation. b. Noise. The premises are two levels. It must have been obvious to the tenant when she rented the premises, that there would be someone living upstairs from her. In fact the landlord’s evidence, which was not disputed by the tenant, is that when the tenant viewed the premises prior to the tenancy starting, the landlord raised noise with her, and she consented to it. The tenant has not proven that the noisee was anything other than ‘standard’ noise being generated in the upstairs tenancy from the normal living of the landlord and her son. I am also minded that I can see the landlord made efforts to mitigate the noise with socks and rugs, I cannot see what more the landlord reasonably could have done. There has been no breach of the tenant’s reasonable quiet enjoyment interest here. c. Incense. The tenant takes issue with the landlord’s request not to burn incense. The landlord agrees that request was made. But I accept the landlord’s request was on the basis that the incense was filtering into her upstairs dwelling, and causing a reaction to her. If the incense was only experienced in the tenant’s dwelling, she would have an argument here. But given the issue taken was the effect of the incense in the landlord’s dwelling, I cannot see any issue with her making that request of the tenant. d. Cat tray. I firstly note there is no legal requirement that a landlord mark off inspection findings on a sheet. There is no reason a landlord cannot visually inspect the premises without making any written record. The tenant has not convinced me that the landlord’s question about the cat tray was intrusive. There is a potential nexus between cats living in a dwelling, and damage to the dwelling. I accept that regularly changing the cat tray is an important mechanism to ensuring the pet properly uses the tray for toileting, and further if the tray was not being changed or cleaned, that would lead to excessive odours that would have the potential to disturb the quiet enjoyment of the landlord, or cause a need for sanitation or cleaning to the tenancy. The landlord’s question was not unreasonable.
Even if I were wrong in my assessment of the four matters above, none of those would amount to harassment of the tenant. I cannot accept that the landlord did any of those things intending to upset the tenant.
This claim must be dismissed. Notice for maintenance
The tenant states that the landlord advised that she was to undertake maintenance, but did not have the courtesy to advise when it would be done. In particular washing the outside of the house, which was noisy.
The tenant also states that there was the plumber coming to the house to address the issues the tenant complained of as above, but the tenant agreed to the plumber coming in the tenancy.
The landlord says that with exterior maintenance, the landlord would give in most cases a week of notice, but at least 24 hours’ notice. The landlord states that when the tenant raised issues with the initial date for the plumber, another date was arranged that suited the tenant.
In conclusion, the tenant considers that she should have been given an opportunity to fix the dates for these workers. Analysis
The landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy, the landlord only needs to give notice to come inside the tenancy dwelling.
Section 48 of the RTA relates to the landlord’s right of entry, with subsection 1 confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice. If the landlord fails to comply with the entry requirements, then they commit an unlawful act, and therefore exemplary damages could be ordered. But the problem for the tenant, is subsection 7 which holds that “In this section premises does not include land or facilities”.
The effect of that subsection 7 provision, is to exclude any requirement for the landlord to obtain consent, or give notice, to enter land or facilities that otherwise comprise the premises. What that means is that the landlord did not need to give the tenant notice that she was having the house cleaned, or for any other work where entry to the tenancy was not required.
In relation to the plumbing, the tenant agrees that she consented to the entry of the plumber, so there is no breach there either.
This claim is dismissed. Misrepresentation of length of tenancy
The tenant considers that there had been a misrepresentation as to the length of the tenancy, where both parties had discussed and wanted a long- term arrangement. In this case the landlord gave notice so her son could move into the premises, but in fact he had a large room in the landlord’s dwelling, and plenty of space in the house he could have used otherwise. The tenant states that it had never been discussed with her that her son wanted the flat, the tenant considers this should have been raised with her. The tenant says that this notice has significantly affected her mentally and financially.
The landlord states that the termination was because her son required the flat. Over the year his situation changed. At the start of the tenancy, her son was only living at the house half-time. The son turned 18 in March and made a decision to make some changes, including living with the landlord full-time. Analysis
The tenant considers that the tenancy was misrepresented because the tenancy was to be a long-term tenancy, and further the landlord should have advised she was considering moving her son into the tenancy.
From a strict legal perspective, under the RTA there are only two types of tenancy, a fixed-term tenancy (which means the tenancy cannot be ended by notice before the fixed term end date), or a periodic tenancy (which can be ended by notice). Here the parties contracted to a periodic tenancy, so the fact of the landlord giving notice is consistent with the landlord’s rights under the periodic arrangement.
There are no additional clauses in the tenancy agreement that require a minimum tenancy period, and the tenant has not proven that both parties agreed on what a minimum term of the periodic tenancy would be. While both parties no doubt hoped there to be a long-term tenancy when the contract was agreed (normally tenants and landlords do), I doubt that either party considered the tenancy would last forever.
I note that if the parties wanted a minimum period, they could have entered into a fixed-term tenancy agreement, but they did not.
Having heard from the landlord, I am confident in concluding there were genuine reasons for why the decision was made for the son to move into the downstairs premises, and that those circumstances arose after the tenancy started.
There is no legal requirement that the landlord tell the tenant she is thinking about ending the tenancy, or that she was contemplating her son moving downstairs. All that the landlord needs to do, is to provide 90 days notice as the landlord has done (see RTA section 51(1)(a)).
I also note that under the RTA the landlord does not need to take into account the circumstances of the tenant in fixing the tenancy end date. I note here that this factor goes both ways. Neither does the tenant need to take into account the best date to end a tenancy to meet the landlord’s needs.
The tenant has not proven that the tenancy term has been misrepresented. Damage to tenants car
The tenant states that the landlord would use the outside area of the premises to do things like sanding. The tenant says there were some paint rags left close to where her car was parked. The tenant says she was concerned that the rags would blow onto her car because it was a windy day, so she asked the landlord to move them. The tenant says the landlord moved the rags under a gate, but the rags could still have been blown on the car. The tenant was also concerned that the landlord would use tools which could have resulted in dust going on her car.
I asked the tenant if there had actually been any damage to her car, and she advised there had not been any damage but there was a potential for damage given the paint rags could have been blown on the car. The tenant says there was however dust on her car.
The landlord considers that the dust on the tenant’s car was pollen, stating that she does not do sanding with a machine, but would do some hand sanding of tiles. The landlord does have an electric saw that she would use 2-3 times per year. Analysis
As I indicated to the tenant at the hearing, I cannot see any breach here. The landlord has not damaged the tenant’s car, and even if there were paint rags drying outside, or tools used outside on the driveway, there is no breach here, those are lawful activities. Even if there was some dust on the tenants car, there is no damage.
The tenant has not proven any loss she has incurred, or any breach of some legal obligation on the part of the landlord, so this claim is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression, but because she has not been successful in her claim, the application for name suppression is dismissed.

Order

The applications are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. There are four broad claims relating to quiet enjoyment, notice for maintenance, misrepresentation of tenancy length and potential car damage.

BACKGROUND

The parties entered into a periodic tenancy commencing on 9 March 2024.
The premises are a free-standing house. The landlord lives in the top level, and the tenant in the level below.
On 21 October 2024 the landlord gave 90 days’ notice ending the periodic tenancy, on the basis that the landlord or a family member required the premises as a place of residence. In particular, the landlord’s son was to move into the tenancy premises.
On 8 November 2024 the tenant gave the landlord 28 days’ notice terminating the tenancy.
The tenancy has ended, and the tenant filed these claims with the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
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.

ANALYSIS

The tenant presents four broad claims, which I will now consider in turn. Breach of quiet enjoyment
The tenant seeks exemplary damages for a breach of her quiet enjoyment.
The tenant states that when she returned from an overseas visit around July, she found that when someone was using taps in the landlord’s upstairs dwelling, the hot water in the tenancy taps would get very hot, and would be scolding, and there would also be a change of water pressure until the upstairs taps were turned off. The tenant states that the landlord had long known that the whole house needed replumbing, but she did not want to do that given the cost.
The second issue for the tenant was being woken from about 5:45am in the mornings, with heavy footsteps upstairs every 30-odd minutes, which affected her ability to get back to sleep. The tenant considers this an intrusion.
The third issue was a complaint from the landlord that the tenant not burn incense, because the landlord found it to burn her eyes.
The fourth issue relates to an inspection where the landlord said she was “concerned about your cat” which made her feel uncomfortable, as the landlord asked her how often she cleaned the cat litter tray. The tenant does not consider that the landlord was otherwise taking notice of the state of the flat and making this off on an inspection sheet.
In response the landlord states that she was not aware of any fluctuation in water delivery, until this was raised by the tenant on 8 August 2024. The landlord states that she contacted plumbers, who advised that these fluctuations would be expected given the plumbing system, but the only way to avoid that would be to replumb the property. But the parties agreed that the landlord would avoid using the kitchen taps between 8:30 and 9:00am. However the plumber did do some work hoping it would resolve the issue, but that did not turn out to be effective. The landlord confirmed that there is no separate water supply to the tenancy, but the tenant is not charged for water separately, it is an all-inclusive rental.
In terms of the footsteps, the landlord states that she was aware there would be footsteps heard in the tenancy below, and this was raised with the tenant before she agreed to rent the premises, and the tenant advised she accepted that. However, the landlord described what she did to try to limit noise, such as wearing socks inside and purchasing and moving rugs to provide some noise reduction.
As it relates to the incense the landlord states she could smell that in her dwelling, and she has a reaction to it.
With regard to the cat tray, the landlord states the tenant had a fully indoor cat. The landlord agrees that she did ask if the litter tray was changed regularly. Analysis
The tenant seeks exemplary damages for a breach of her quiet enjoyment.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In this case the tenant claims that the unlawful act relates to a breach of her quiet enjoyment. Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that 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.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment.
Taking the above legal considerations into account, I conclude that this claim has not been established for these reasons. a. Plumbing. There is no evidence before me that the plumbing in this dwelling does not meet the necessary legal / building standards. I accept when water is used in the upstairs dwelling, that would result in pressure and temperature changes downstairs. Both levels of the house share the same plumbing system, there is no requirement in law for the systems to be separate in a tenancy. It is very common in dwellings that pressure and temperature fluctuations occur when two or more taps are used at the same time, there is nothing unusual in what the tenant describes. Given what the tenant describes is a usual common with plumbing in New Zealand, I cannot see how the landlord has interfered with any reasonable quiet enjoyment expectation. b. Noise. The premises are two levels. It must have been obvious to the tenant when she rented the premises, that there would be someone living upstairs from her. In fact the landlord’s evidence, which was not disputed by the tenant, is that when the tenant viewed the premises prior to the tenancy starting, the landlord raised noise with her, and she consented to it. The tenant has not proven that the noisee was anything other than ‘standard’ noise being generated in the upstairs tenancy from the normal living of the landlord and her son. I am also minded that I can see the landlord made efforts to mitigate the noise with socks and rugs, I cannot see what more the landlord reasonably could have done. There has been no breach of the tenant’s reasonable quiet enjoyment interest here. c. Incense. The tenant takes issue with the landlord’s request not to burn incense. The landlord agrees that request was made. But I accept the landlord’s request was on the basis that the incense was filtering into her upstairs dwelling, and causing a reaction to her. If the incense was only experienced in the tenant’s dwelling, she would have an argument here. But given the issue taken was the effect of the incense in the landlord’s dwelling, I cannot see any issue with her making that request of the tenant. d. Cat tray. I firstly note there is no legal requirement that a landlord mark off inspection findings on a sheet. There is no reason a landlord cannot visually inspect the premises without making any written record. The tenant has not convinced me that the landlord’s question about the cat tray was intrusive. There is a potential nexus between cats living in a dwelling, and damage to the dwelling. I accept that regularly changing the cat tray is an important mechanism to ensuring the pet properly uses the tray for toileting, and further if the tray was not being changed or cleaned, that would lead to excessive odours that would have the potential to disturb the quiet enjoyment of the landlord, or cause a need for sanitation or cleaning to the tenancy. The landlord’s question was not unreasonable.
Even if I were wrong in my assessment of the four matters above, none of those would amount to harassment of the tenant. I cannot accept that the landlord did any of those things intending to upset the tenant.
This claim must be dismissed. Notice for maintenance
The tenant states that the landlord advised that she was to undertake maintenance, but did not have the courtesy to advise when it would be done. In particular washing the outside of the house, which was noisy.
The tenant also states that there was the plumber coming to the house to address the issues the tenant complained of as above, but the tenant agreed to the plumber coming in the tenancy.
The landlord says that with exterior maintenance, the landlord would give in most cases a week of notice, but at least 24 hours’ notice. The landlord states that when the tenant raised issues with the initial date for the plumber, another date was arranged that suited the tenant.
In conclusion, the tenant considers that she should have been given an opportunity to fix the dates for these workers. Analysis
The landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy, the landlord only needs to give notice to come inside the tenancy dwelling.
Section 48 of the RTA relates to the landlord’s right of entry, with subsection 1 confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice. If the landlord fails to comply with the entry requirements, then they commit an unlawful act, and therefore exemplary damages could be ordered. But the problem for the tenant, is subsection 7 which holds that “In this section premises does not include land or facilities”.
The effect of that subsection 7 provision, is to exclude any requirement for the landlord to obtain consent, or give notice, to enter land or facilities that otherwise comprise the premises. What that means is that the landlord did not need to give the tenant notice that she was having the house cleaned, or for any other work where entry to the tenancy was not required.
In relation to the plumbing, the tenant agrees that she consented to the entry of the plumber, so there is no breach there either.
This claim is dismissed. Misrepresentation of length of tenancy
The tenant considers that there had been a misrepresentation as to the length of the tenancy, where both parties had discussed and wanted a long- term arrangement. In this case the landlord gave notice so her son could move into the premises, but in fact he had a large room in the landlord’s dwelling, and plenty of space in the house he could have used otherwise. The tenant states that it had never been discussed with her that her son wanted the flat, the tenant considers this should have been raised with her. The tenant says that this notice has significantly affected her mentally and financially.
The landlord states that the termination was because her son required the flat. Over the year his situation changed. At the start of the tenancy, her son was only living at the house half-time. The son turned 18 in March and made a decision to make some changes, including living with the landlord full-time. Analysis
The tenant considers that the tenancy was misrepresented because the tenancy was to be a long-term tenancy, and further the landlord should have advised she was considering moving her son into the tenancy.
From a strict legal perspective, under the RTA there are only two types of tenancy, a fixed-term tenancy (which means the tenancy cannot be ended by notice before the fixed term end date), or a periodic tenancy (which can be ended by notice). Here the parties contracted to a periodic tenancy, so the fact of the landlord giving notice is consistent with the landlord’s rights under the periodic arrangement.
There are no additional clauses in the tenancy agreement that require a minimum tenancy period, and the tenant has not proven that both parties agreed on what a minimum term of the periodic tenancy would be. While both parties no doubt hoped there to be a long-term tenancy when the contract was agreed (normally tenants and landlords do), I doubt that either party considered the tenancy would last forever.
I note that if the parties wanted a minimum period, they could have entered into a fixed-term tenancy agreement, but they did not.
Having heard from the landlord, I am confident in concluding there were genuine reasons for why the decision was made for the son to move into the downstairs premises, and that those circumstances arose after the tenancy started.
There is no legal requirement that the landlord tell the tenant she is thinking about ending the tenancy, or that she was contemplating her son moving downstairs. All that the landlord needs to do, is to provide 90 days notice as the landlord has done (see RTA section 51(1)(a)).
I also note that under the RTA the landlord does not need to take into account the circumstances of the tenant in fixing the tenancy end date. I note here that this factor goes both ways. Neither does the tenant need to take into account the best date to end a tenancy to meet the landlord’s needs.
The tenant has not proven that the tenancy term has been misrepresented. Damage to tenants car
The tenant states that the landlord would use the outside area of the premises to do things like sanding. The tenant says there were some paint rags left close to where her car was parked. The tenant says she was concerned that the rags would blow onto her car because it was a windy day, so she asked the landlord to move them. The tenant says the landlord moved the rags under a gate, but the rags could still have been blown on the car. The tenant was also concerned that the landlord would use tools which could have resulted in dust going on her car.
I asked the tenant if there had actually been any damage to her car, and she advised there had not been any damage but there was a potential for damage given the paint rags could have been blown on the car. The tenant says there was however dust on her car.
The landlord considers that the dust on the tenant’s car was pollen, stating that she does not do sanding with a machine, but would do some hand sanding of tiles. The landlord does have an electric saw that she would use 2-3 times per year. Analysis
As I indicated to the tenant at the hearing, I cannot see any breach here. The landlord has not damaged the tenant’s car, and even if there were paint rags drying outside, or tools used outside on the driveway, there is no breach here, those are lawful activities. Even if there was some dust on the tenants car, there is no damage.
The tenant has not proven any loss she has incurred, or any breach of some legal obligation on the part of the landlord, so this claim is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression, but because she has not been successful in her claim, the application for name suppression is dismissed.

Tenancy Tribunal case 5065549 — Leaks at 23 Kestrel Heights, Arkles Bay, Whangaparaoa 0932

At a glance

Tenancy Tribunal case 5065549 — Leaks at 23 Kestrel Heights, Arkles Bay, Whangaparaoa 0932

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions