What was Tenancy Tribunal case 5169816 about?

The tribunal order states: The tenants were entitled to terminate the tenancy on 3 March 2025 because the

How much money was awarded in case 5169816?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5169816?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Healthy homes, Mould & damp, Leaks.

Where can I read the official tribunal order for case 5169816?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12063057-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5169816 about?

The tribunal order states: The tenants were entitled to terminate the tenancy on 3 March 2025 because the

How much money was awarded in case 5169816?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5169816?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Healthy homes, Mould & damp, Leaks.

Where can I read the official tribunal order for case 5169816?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12063057-Tribunal_Order_Redacted.pdf.

132A Finlayson Avenue, Clendon Park, Auckland 2103 Tenancy Tribunal Case 5169816 — 14-day notice

Order

The tenants were entitled to terminate the tenancy on 3 March 2025 because the premises was uninhabitable.
The Tribunal orders suppression of the names of the tenants.
The landlord must pay the tenants the filing fee of $27.
The bond is to be returned to the tenant.

Reasons

Both parties attended the hearing.
The tenancy the subject of this application was a fixed term tenancy which commenced on 21 October 2023. It was later extended by agreement to 30 October 2025.
The tenancy was brought to an abrupt end on 3 March 2025 when the tenant gave four days’ notice terminating the tenancy.
The landlord has filed a cross application, claiming the tenants were in breach of the tenancy agreement by only giving four days notice. The issues
The issues arising in this matter are: a. Was the landlord in breach of their obligations under the Residential tenancies Act 1986 (the RTA)? b. Was the tenant entitled to terminate the tenancy on short notice? c. If not, is the landlord entitled to damages? Background
The premises are a two-bedroom premises with a small lounge, laundry room and kitchen. There is an upstairs premises rented out to another tenant.
The tenants noticed that whenever there was a heavy downpour there was a small amount of water in the carpet coming up from the floor in their bedroom.
On those occasions the tenants say they would contact the landlord and tell them about it. The tenants would resolve the issue themselves by drying it out with a hair dryer. The tenants provided a photo dated 20 September 2024 which showed small patches of water in the carpet.
On the 3 rd of January 2025 there was a heavy rain and the tenants noticed water coming up from under the carpets in their bedroom again.
This time there was a bigger patch of water and the carpet was giving off a foul odour.
The tenants told the landlord about it and their son (who the tenants had sometimes dealt with) was to attend to it.
The tenants had no choice but to sleep in the living room because of the smell.
Mrs Soares visited the flat the following Tuesday, with a builder to investigate. The builder said he did not know where the water was coming from. The builder pulled back the carpet and could see the water was coming up from the floor.
The builder suggested the water may be coming from a drain under the room.
The following day, the landlords engaged a plumber to fix the driveway pipe and that plumber told the tenant he did not know where the water inside the bedroom was coming from but said it may be from the gully trap which was at the opposite side of the house. He cleaned the gully trap and left.
The tenants said that following this work the smell in the carpet was still there.
The tenant also observed that mould was forming under the carpet.
The Landlord arranged for the upstairs tenant to clean the carpet. The tenant claimed this “cleaning” left a bigger patch of moisture.
At this point the tenants were very frustrated and upset about the fact that they had been occupying a property that had now developed a permanent foul odour The tenants sent the landlord a notice to remedy on 9 January 2025. This provided as follows: Re: Notice to Remedy Tenancy at: 132A Finlayson Avenue, Clendon Park, Manurewa, Auckland 2103 Reference is made to the above property wherein we are the current Tenants. It is with great surprise that we are learning from the My Rent Dashboard that you are the new owner of the property. Change of ownership should have been informed to avoid any future issues and correspondence. Regardless, we would like to formally raise a few issues at the property which needs urgent attention. We are currently facing the following issues:
One of the rooms which is being occupied by us has water flowing from underneath the carpet. The carpet has a big patch, is soggy and is giving a foul smell. This was reported to Clyde and yourself on 4 th of January 2025 with photos over text message and it got worse gradually. Bernadette visited on the following Tuesday with a builder who failed to assist in any way. Following day, a plumber came by, he informed me he did not know where the leakage was coming from and went away while Bernadette sent the upstairs tenant to clean the carpet with a cleaning machine she did not even know how to operate. Carpet was made worse with a big soggy patch being left behind. The foul smell is still there if not worse. We have been sleeping in our living room since Sunday because of the smell and the whole house smells of damp carpet. This issue has occurred several times and Clyde was informed of this previously.
Moulds on window seals and bathroom ceiling. This issue was raised with Clyde verbally on several occasions since the start of our tenancy in 2023. We have been cleaning this ourselves, however, it keeps coming back.
Draughty Doors – due to the gaps, we experience water splashing in from the front door when it rains and constant cold breeze from both the front and back doors. It gets worse during winter.
Changing the shower enclosure – as discussed previously for the shower enclosure to be replaced due to the bottom wooden base being rotten and leaking, you informed us this will be done on the 16 th and 17 th of January 2025. Kindly confirm the same on email and also, we will require accommodation for the two days we will not be able to use the shower. Please arrange this and advise accordingly.
Following the notice being issued the tenants say the carpet issue was not promptly remedied. The carpet was left rolled back and the water underneath could still be seen. The tenants remained sleeping in the living room because of the smell.
Regarding the mould, the tenants would regularly (monthly) wipe the mould away but it would always come back.
Regarding the draughts under the doors, the issue related to the front and back doors. There was a gap underneath these doors which allowed draughts to come in, according to the tenants. This issue had been flagged by the Healthy Homes report attached to the tenancy agreement.
Following the issuing of the notice the tenants claim nothing was done to remedy the issue. The tenants claim the issued was never remedied and produced a report which contained photos of slight gaps under the doors but did not state that any draft seals were required. They say this may not have breached Healthy Homes Standards but the slight gaps still allowed cold air to come in.
On the 24 th of January 2025 the floor works were organised. The landlord was to replace the floor panels and install a wooden floor.
On the day of the repairs the worker started sanding the floors and within 15 minutes the tenant’s asthma flared up because of the dust.
The landlord got the tenants a hotel room to sleep in for two nights and paid for this.
The tenant says that throughout all this time they were sleeping in the living room.
When the tenants moved back after the work had been done they say there was still dust in the house. The tenants complained but the landlord denied the house was not clean. The tenants say they spent around 6 hours cleaning the house.
This work however remedied the issue with the smelling carpets.
On the night of 22 nd of February at around 12.30am, when [Tenant 2] opened the door to the bathroom, s h e s a w the whole floor of the bathroom was covered in water. Water was dripping d o w n from the extractor fan and light panel in the bathroom.
The tenants informed the landlord immediately and a plumber came in the following morning.
The plumber opened the extractor fan and a gush of water came out. The plumber then fixed the issue. He left three big holes in the ceiling though and it was left like that. The tenants said you could see moisture in the exposed area and exposed wires.
The final straw occurred not long after, on 2 March. The tenants went away for the weekend. When they returned they were met with water everywhere. The water was spraying from a broken pipe in the ceiling of the bathroom.
The tenants provided a video corroborating this. Water can be seen on every floor.
The tenant attempted to call the landlord but he did not pick up. [Tenant 1] contacted his brother-in-law who gave him the details for a 24 hour plumber, [Plumbing Company].
That plumber attended at the property and advised that the black alkathene pipes were the problem and that the landlord needed to change the pipe system as the pipes would otherwise keep bursting. The tenants were able to get the landlord on the phone and the landlord spoke direct to the plumber.
The plumber then fixed the pipe to stop the water spraying everywhere. The tenant claims the plumber invoiced the landlord directly. A plumber’s report for the incident was produced from [Plumbing Company]. SITE ADDRESS:132A finlayson avenue, clendon park REASON FOR SITE VISIT:Repair burst pipe in bathroom ceiling space. Photos attached below. RESOLVED: -replacing damaged area of pipe with new buteline fitting . PLUMBER ON SITE: [redacted] PIPE BRAND: Fittings: outdated buteline Pipe: black alkathene pipe NOTE: Seems like there has been a couple of repairs prior to this. Brand of fittings used we not named. black alkathene pipes are known to burst over time.
On 3 March 2025 The tenants gave notice of termination of the tenancy because they could not take it anymore. It had been the last straw for them. The tenants moved out on 7 March.
The tenants paid rent up until 7 March.
The tenants want orders that: a) They have validly terminated the tenancy because the premises was uninhabitable. b) They want their bond back. c) They claim the 6 hours spent cleaning as noted above. d) They want damages for stress and compensation and for the $17 doctors fee resulting from the asthma attack. Landlord’s response
The landlord says: a) The first time the tenant complained about any water in the carpet was in September 2024. The landlord says he took a rug doctor and cleaned the carpet. He checked over the property to see if there were any signs of water ingress and could not find anything. b) As soon as the landlord was back from holiday they attended to the incident that occurred on 3 January. c) This was a difficult time of the year to get plumbers so they arranged for the tenant upstairs to get a rug doctor. It was only a one spare meter patch and they considered that would be adequate. d) On 8 January the landlord was able to get a plumber to come and take a look at the property. There was an issue with water from the driveway. The plumber took a good check over the property and could not see any points of water ingress. He said the only thing could have been a gully trap and he cleaned it out. e) The following day the landlord got a drainage expert to inspect the property and he confirmed there was no water ingress coming in from the outside. He went all around the property. f) The landlords then did their best to dry out the carpet and clean it. g) Although the tenants were sleeping in the living room, they were still able to use all the rest of the property. The landlords say they got cleaners in to spotlessly clean the premises once the work was done. h) The landlords said they responded whenever the tenants complained. i) The landlords decided to replace all the flooring with wooden flooring instead of carpet. The landlord replaced the shower a week later. j) The landlords compensated the tenants by: paying for two nights accommodation of $330.53 at a hotel when the flooring was done, deducting one weeks rent of $450, paying $210 for meals at the hotel, paying $70 for breakfast at the hotel. k) The landlord is claiming the costs of having to find a new tenant. l) Regarding the final flooding incident, the landlord is sceptical as to whether it was genuine. The landlord said by the time they found out about it, the tenant had already arranged for their own plumber to repair the damage. The landlord denies paying any plumbing invoice for the work to fix the pipes. They consider this incident to be fabricated in some way. m) The landlord claims that after the floor sanding they brought cleaners in to do all the cleaning. The landlord denies that the premises were dirty. n) The landlord addressed the draughty doors, says these were remedied before the tenants moved in and they got a fresh healthy homes report which passed this issue. o) The landlord denies the premises were uninhabitable. They accept the floors were covered in water but because all the floors were now wooden, it was just a matter of wiping up the floors. All that needed to be done it to mop up the whole place.
The landlord also made written submissions setting out their position.
The tenants reply to the claim they had fabricated the final instance of flooding is absurd. They say the only reason they called in a plumber is because they first called the landlord. And he did not pick up. They had to do something because water was spraying anywhere.
For the tenants it was a breaking point.

Was the landlord in breach of their obligations under the RTA?

The tenants claims that the landlord has breached their obligations under s 45 of the RTA.
Under s 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 1
The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 2 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 3
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 4
In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 6 1 Section 45 of the RTA 2 DC Auckland CIV 2005 004 1762, at [28] 3 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15]
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach. 7 However, notice from the tenant is not required if the landlord knew of the need to repair 8 or the need for repair was apparent from observation. 9
There is also failure to repair if the repair is ineffective, non-complaint or unsafe. 10
In terms of the burden of proof, the obligation to prove the claim is on the party bringing it. They must prove their case on the balance of probabilities. I must decide what has more likely or probably than not taken place. Photos, invoices and reports are often useful corroborating evidence for that purpose.
I consider that the landlord was in breach of their obligation of maintenance by way of the separate flooding and water ingress instances.
I dismiss the allegation that the landlord has failed their obligation regarding the rest of the claims, because I consider inadequate evidence has been placed before me to corroborate these claims.
Regarding the water ingress instances, and particularly the last instance, there is good corroborating evidence that these instances took place.
I find however that the landlord did everything they could to remedy these issues, once they were brought to their attention, other than the final instance. I also find the landlord has already adequately compensated the tenant by way of the payments referred to above.
I am therefore not prepared to award any damages in favour of the tenant for these breaches.

Were the premises uninhabitable?

Under s 59A of the RTA, if the premises are so seriously damaged as to be uninhabitable, a tenant may given two days notice ending the tenancy.
The term uninhabitable is not defined in the RTA but sections 59, 59A and 59B all deal with situations where a home is determined uninhabitable. Case law is helpful. In First Avenue Property Ltd v Malik DC Christchurch (VIC- 2011-009-001539) 23 November 2011 the Court considered the word and stated: [12] The Act does not define ‘uninhabitable’ but, in my judgment, a liberal approach should be taken to the interpretation of that word. Every case should be decided on its own facts. It is for the Tribunal to determine just what the damage was that was occasioned by the earthquake, what effect it has had on the tenants, and then to decide whether these premises are so seriously damaged as to be uninhabitable. That, in my judgment, also involves having regard to the personal circumstances of the tenants. For example, young men occupying a flat might be more robust and able to put up with the privations of earthquake damage than, say, a young family with a child who had bronchial problems that are exacerbated by liquefaction dust or even an elderly couple whose mobility is affected by their age. These are circumstances that should be taken into account in deciding whether, in the particular case, premises are so seriously damaged as to be uninhabitable.
What is clear from this District Court decisions is that whether premises are uninhabitable will be decided on a case-by-case basis: there is no statutory definition or test of uninhabitability. The Tribunal must have regard to the personal circumstances of the tenants however likewise must also consider prevailing conditions and expectations of the particular community at the particular time.
I find that the premises were flooded on 2 March and I accept the tenants evidence in this regard. I consider the tenants to be clear and reliable witnesses and it would have been a very elaborate and unlikely scheme to have deliberately sabotaged the pipes just to get out of a tenancy. I do consider this to be a very far-fetched allegation and very unlikely.
The tenants gave evidence as to how stressed and tired they were over yet another instance of water ingress. I consider it was reasonable for them to conclude the premises were, overall, uninhabitable. The plumber had told them the pipes would need to be replaced; the same problem may have happened again.
I find the premises were uninhabitable when the flooded with water on 2 March 2025.
The tenants were legally entitled to terminate the tenancy as they have done. They paid rent up until the date the tenancy ended.
I am not prepared to award them any additional damages. They have talked about the emotional toll on them however being involved in landlord and tenant disputes is inherently stressful.
It follows that the landlord’s claim that the tenant gave short notice is dismissed.
Because [The tenant/s] have succeeded with the claim I must reimburse the filing fee. I also award them name suppression, given they have been successful.
The tenants are entitled to return of the bond.

Tenancy Tribunal case 5169816 — 14-day notice at 132A Finlayson Avenue, Clendon Park, Auckland 2103

At a glance

Tenancy Tribunal case 5169816 — 14-day notice at 132A Finlayson Avenue, Clendon Park, Auckland 2103

At a glance

Claims & awards

Order

Reasons

Was the landlord in breach of their obligations under the RTA?

Were the premises uninhabitable?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the landlord in breach of their obligations under the RTA?

Were the premises uninhabitable?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions