What was Tenancy Tribunal case 5168132 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 5168132?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5168132?

The primary dispute was 14-day notice. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5168132?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11792383-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5168132 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 5168132?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5168132?

The primary dispute was 14-day notice. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5168132?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11792383-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5168132 — 14-day notice

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants names and identifying details.
The landlord’s application for a work order is dismissed.
The Tribunal declares that the tenant’s dog may live at the premises.

Reasons

Both parties attended the remote hearing.
The tenancy commenced on 27 July 2024 and is a fixed term tenancy. This tenancy relates to a home in Auckland.
The landlord has applied for an order that the tenants remove their dog from the premises and for an order that the tenants have the premises professionally cleaned. There is no dispute that the tenants have a pet dog at the premises.

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 applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, 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. LANDLORD’S POSITION
The landlord says she is disappointed that the tenants got a dog despite the landlord not agreeing to this. The landlord says at the time the tenancy agreement was signed and the tenancy commenced the landlord was only aware that the tenants wanted a cat. The landlord says she agreed to the tenants having one cat and she says this is recorded in the tenancy agreement.
The landlord refers to an email exchange from 8 July 2024 between the property manager and one of the tenants, as evidence that the tenants were aware they would have to get her consent to having a dog.
On receipt of the tenancy agreement to sign, the tenant emailed: Would you mind confirming via email the landlord is happy for us to own a small breed of dog? We will of course, advise them when we plan to adopt one.
The property manager replied later that day: You may talk to the owner again when the time comes, we are doing the casual for the owner only, so we do not guarantee anything at this stage...
The tenant then replied the next day: No trouble at all, completely understand the position you’re in!
I understand the tenancy agreement was then returned to the landlord who has signed the agreement on 9 July 2024
The landlord relies on the tenancy agreement. Clause 26 states: Pets: The Tenant agrees not to keep or feed or allow or permit any other person to keep or feed or allow any pet or other animal on or about the Property unless the Landlord agrees otherwise and modifies this agreement in writing to reflect the Landlord’s permission.
More specifically the tenancy agreement has the following clause:
The landlord says on 11 August 2024 one of the tenant’s emailed the landlord requesting to adopt a dog. The email says that the tenants mentioned, when applying for the tenancy, that their intention was to get a puppy around October 2024 and that they were told to let the landlord know and supply a photo for approval.
On 12 August 2024 the property manager replied saying the landlord did not approve of the tenant’s having a dog. The landlord is particularly worried about noise and disturbance from the dog.
The tenants then adopted a dog without the landlord’s consent. I understand the tenants did not inform the landlord that they had a dog and the landlord found out from a third party.
A 14 day notice to remedy a breach of the tenancy agreement was served on the tenants on 4 February 2025. The application to the Tribunal was made on 19 February 2025. TENANT’S POSITION
The tenants say when they submitted their application to rent the property, they raised their intention to have a dog with the property manager.
The tenants say they would not have taken the property had they known a dog would be prohibited. They say their decision to move was, in part, based on the understanding that a small dog would be permitted.
The tenants say prior to receiving the tenancy agreement, they asked the property manager about the possibility of having a small dog. They say the property manager said that a small dog might be permissible, and he suggested they speak to the owner directly at a later time.
The tenants say there has been a misunderstanding due to the property manager not putting in writing a refusal to their request to have a dog, before the tenancy agreement was signed.
The tenants also dispute the reasons why the landlord has refused to agree to them having a dog. They say the neighbours agree to them having a dog (and provided emails to confirm this) and dispute any issues may arise from damage or dog hair.
The tenants have not filed a cross application but seek a declaration that they are permitted to keep their dog and seek compensation and a written reference.
The tenants arranged for the property manager to be summons to the hearing. The property manager was unable to recall specific details of discussions with the tenants, but he did say he told the tenants that if they ever planned to have a dog, they would need to notify the landlord and obtain formal approval before getting a dog. The property manager also said at the hearing that he told the tenants that “when the tenants have a dog”, (emphasis added) they must talk to the landlord. I am not clear this was something he specifically said to the tenants prior to the tenancy, given he had difficulty recalling the details, however I am satisfied there was miscommunication about the landlord’s position on dogs.

ANALYSIS

Section 77(2) RTA specifically provides the Tribunal shall have jurisdiction: (l)to order the landlord or the tenant under any tenancy agreement to which this Act applies to do anything necessary to remedy the breach by that party of any express or implied provision of the tenancy agreement or any provision of this Act, or to do anything that that party is required to do by any such provision: (m) to order the landlord or the tenant under any tenancy agreement to which this Act applies to refrain from doing anything if the doing of that thing by that party would constitute a contravention or (as the case may require) a further contravention of any express or implied provision of the tenancy agreement or any provision of this Act
In exercising its jurisdiction, the Tribunal may make an order for a tenant to carry out work. 1 In this case, the landlord seeks a work order for the tenants to remove their dog and to have the premises professionally cleaned. Pet clauses in tenancy agreement
Clause 26 of the tenancy agreement states the tenant agrees not to keep any pet on or about the property unless the landlord agrees otherwise and modifies this agreement in writing to reflect the landlord’s permission.
I consider the additional pet clause (with the “yes” box ticked) say pets (plural) are allowed, thereby providing the landlord’s permission to have pets pursuant to clause 26. The clause says the tenant has a cat named Romeo but does not then go on to exclude or limit any other pets. The tenants informed the landlord (via the property manager) that they intended to get a dog, prior to signing the 1 See section 78(1)(e) Residential Tenancies Act 1986. tenancy agreement. I consider that if the landlord did not agree to the tenants having a dog this should have been recorded in the tenancy agreement.
While the tenants have emailed the landlord about their intention to get a puppy, and asked for approval of the specific puppy, I do not consider there was any contractual obligation on them to do so. Accordingly, I find that pets are allowed pursuant to the tenancy agreement, and the tenants are not in breach of the tenancy agreement.
However, if I am wrong in that finding, then for the reasons I outline below, I do not consider a “no-dog” clause is enforceable in this case, if the clause in this case is to be read as a “no-dog” clause. Enforceability of no-dog clause
Section 11 of the RTA prohibits the parties from contracting out of the RTA. Section 11 states: 11Act generally to apply despite contrary provisions (1)Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a)the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b)the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2)Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3)Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
This provision of the RTA means that any clause of a tenancy agreement which is inconsistent with the RTA will have no effect unless the Tribunal is satisfied that the clause in the tenancy agreement should be permitted having regard to: a. the nature of the tenancy, b. the provisions of the tenancy agreement, c. the interests of the parties, and d. all other relevant circumstances of the case.
Where the RTA neither specifically prohibits nor permits a particular activity, the issue is then whether a landlord has contractual freedom to impose a particular restriction on the tenant in relation to the activity.
This is likely to depend on whether the restriction breaches the tenant’s general rights to quiet enjoyment set out in s 38 of the RTA which states: 38Quiet enjoyment (1)The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) 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.
Adjudicator Kemp in Collins v Martin-Kemp undertook a full analysis of “no pets” clauses and concluded that they are enforceable for the following reasons:
The commentary on s 38(1) in Westlaw states that the covenant for quiet enjoyment protects the tenant’s right to “peaceful possession and enjoyment of the premises” and that enjoyment means “having the full benefit” of the premises.
Arguably, the ability to have a pet is part of a tenant’s right to have the ‘full benefit’ of occupying the premises.
Unless permitted by s 11(1)(b), section 11 RTA prohibits the parties from contracting out of the RTA.
However, the fact the parties agreed to the ‘no pets’ clause in the tenancy agreement requires additional consideration.
The District Court in Marino v Wellington City Council DC Wellington CIV-2013- 085- 660, 23 September 2013 permitted tenants to waive the right to reasonable peace, comfort and privacy by entering into a tenancy agreement knowing that there was construction noise next door.
In Wellington City Council v McMillan DC Wellington MA12-13-14/04, 5 September 2003 the court upheld terms that limit the rights of tenants under s11(1)(b) where the parties are fully informed of and agree to the terms of the tenancy agreement.
These decisions indicates that if a tenant knew the tenancy agreement did not allow pets and accepted the tenancy, then a “no pets” clause can be enforceable.
Holland J in Anguetil v North Canterbury Nassella Tussock Board HC Christchurch AP93/89, 30 October 1989 rejected the tenant’s argument that s 11(3) prevented the tenant from agreeing to an increase in rent in a manner contrary to s24(3) of the Act: Is common sense intended to be excluded by the Act? Can a landlord and tenant simply not verbally agree about an increase in rental as is so often the case? I cannot accept that when it enacted this Act the legislature had in contemplation that it would provide licence to a tenant to resile from a consensual contractual obligation and instead shelter behind the technical provisions of the Act. It seems to me that the whole focus of the Act is to protect tenants against the wiles of avaricious and unscrupulous landlords....
Following Anguetil, the Tribunal in Schmid v Murray TT 181/91, 6 June 1991 said: If a landlord and a tenant who, being in possession of all of the relevant facts and capable of exercising their judgement rationally, decide expressly or impliedly to agree to the landlord breaching one of his/her obligations under the Act, I do not consider that the tenant can later assert that in terms of section 11(3) such a waiver is of no effect. Quite apart from that offending common sense and fairness, it is contrary to fundamental contractual principles of estoppel and I do not believe that the legislature intended this legislation to depart from such a basic principle as that. Having given informed consent to the landlord’s breach of the tenant’s right to quiet enjoyment, the tenant could not “shelter behind” s11(3) of the Act.
In Re Rainbow Trustee 2019 [2023] NZTT 4523629 the Tribunal tacitly endorsed a “no pets” clause when it decided not to interfere with the increase in rent because it was the result of the tenants deciding to keep a puppy. The rent was initially set at $700 per week on the basis that no pets be kept; the previous tenant paid rent of $750 which allowed for a pet. The Tribunal considered that the increase was objectively reasonable as the tenants initially accepted the tenancy without them being able to keep a pet. When they decided to get a puppy, the terms of the agreement changed so the Tribunal dismissed the application for a refund of the increased rent paid by the tenant.
In the New South Wales Supreme Court case of Allkins v Consumer Trader and Tenancy Tribunal [2006] NSWSC 1093 the residential site agreement required the tenant to comply with the park rules pursuant to the Residential Parks Act 1998 (NSW). These rules stated: 1. Any and all pets entering Valhalla Village must first be approved by management; 2. If a resident moves into the village without a pet, they cannot obtain a new pet; 3. If a pet dies, it cannot be replaced.
NSW Associate Justice Malpass held that the park rules did not violate the tenant’s right to quiet enjoyment: Clause 52 of the agreement provided that the plaintiff was not to keep or care for any pets, poultry or animals on the site or in their dwelling, except as permitted by the park rules. The clause also incorporates the park rules into the agreement. I am not satisfied that the rules concerning pets are inconsistent with the provisions of s 20 of the Act (in particular I am not satisfied that they interfere, or cause or commit any interference, with the reasonable peace, comfort or privacy of the resident in using the site)
In the light of the above authority, I consider that the no pets’ clause is enforceable.”
I accept the tenant’s evidence that they were given the impression by the landlord’s property manager that a small dog would be permitted. I consider in the circumstances of this case, the tenancy agreement may have been unclear, and the tenants were not fully informed of the landlord’s position and therefore were not given all relevant facts, despite their enquiries before entering into the tenancy agreement.
The situation therefore requires further consideration.
In Tenant v Sunshine Property Group Limited Lex Huang, 2 Adjudicator Kee approached the issue as follows: 50. In each case the balance is between the tenant’s right to quiet enjoyment and reasonable comfort, against the risk of damage or excessive wear and tear to the premises. 51. If the risk from a pet is low, then there is a strong argument that a blanket ‘no pets’ policy is likely to breach s 38 and should not be permitted under s 11(1)(b). If the risk is high, then the restriction is likely to be permissible. There is obviously a grey area in the middle. 52. The argument is most likely to arise where a landlord seeks to terminate for breach of a no pets policy. A possible middle path is for the Tribunal to determine that: a. A blanket ‘no pets’ policy in not automatically lawful and enforceable. b. A landlord may include a term in a tenancy agreement that having a pet is subject to the prior written consent of the landlord. c.The landlord may not unreasonably withhold consent or attach unreasonable conditions. d.In considering whether it is reasonable to allow the pet to stay, factors could include: i.the size and type of animal; ii.whether the animal has caused any damage to the premises or disruption to the neighbourhood; iii.if the pet is chipped and, in the case of a dog, registered; iv.whether the animal has regular flea treatment; v.whether the pet is house-trained if it is to be inside; vi.if the owner has pet insurance against damage (although this would be voluntary); vii.the reasons for obtaining the pet (e.g. security or emotional health and wellbeing); viii.the length of time the tenant has owned the pet (has it become an integral member of the family); ix.if consent was not sought, the reasons why not.
In applying this approach, I take into account the following matters: a. I was able to see the dog in the remote hearing. The dog is very small and was well behaved. b. There is no evidence of any damage to the premises caused by the dog. Nor is there any evidence as to the state of cleanliness of the premises. 2 Tenant v Sunshine Property Group Limited Lex Huang [2023] NZTT 4573029, 4638049, 4595209, c. I am confident the tenants take their responsibilities as dog owners, in training for it and caring for it seriously. The dog is clearly well loved by all four tenants. d. The tenant’s provided evidence that the neighbours were supportive of them having a dog. e. The tenants were under the impression that the landlord would consent to a dog and all that would be required was for there to be communication about this and the landlord’s approval of a particular dog, which the tenants did not expect to be withheld. f. The landlord engaged in negotiations to allow the dog to remain, subject to the rent increasing. This was not agreed to by the tenants.
Having regards to all the circumstances of this case it is appropriate that the Tribunal directs that the dog may continue to live at the premises.
For the reasons set out above, the landlord’s claim is dismissed. I decline to make any additional orders as sought by the tenant as they have not filed a cross – application.

NAME SUPPRESSION

The tenants applied for name suppression and as they have succeeded in defending the claim I have made an order for suppression of the tenants names and identifying details. 3
The landlord applied for name suppression. The landlord has not been successful in their claim, and I consider the public interest in publication outweighs the landlord’s interests and I decline suppression for the landlord. 4

Tenancy Tribunal case 5168132 — 14-day notice

At a glance

Claims & awards

Tenancy Tribunal case 5168132 — 14-day notice

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions