What was Tenancy Tribunal case 5175473 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 5175473?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5175473?

The primary dispute was Leaks. Related themes: State of repair, Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 5175473?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11722688-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5175473 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 5175473?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5175473?

The primary dispute was Leaks. Related themes: State of repair, Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 5175473?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11722688-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5175473 — Leaks

Tenantcheck Insights

Reasons

Both parties attended the hearing.

[The tenant/s] claims that the landlord has breached its obligations under the Residential Tenancies Act 1986 (“RTA”) by: a. misleading her and breaching her privacy when the tenancy began; b. breaching its obligation under s.45(1)(a), to provide the premises in a reasonable state of cleanliness; c. breaching its obligation under s.45(1)(b), to provide and maintain the premises in a reasonable state of repair; d. breaching her right to quiet enjoyment of the premises by allowing tradespeople to erect scaffolding in her garden without prior notice; e. unlawfully terminating her tenancy; f. refusing to return to her a shower rail she installed.

The tenant claims $60,000.00 as compensation for the physical injuries she says she suffered as a result of the landlord’s breaches.

I note at the outset s.317 Accident Compensation Act 2001, which provides that: “No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of— (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts. (2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,— (a) any damage to property; or (b) any express term of any contract or agreement (other than an accident insurance contract under the Accident Insurance Act 1998); or (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service. (3) However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (2) for personal injury of the kinds described in subsection (1).”

Accordingly, while the Tribunal can consider the tenant’s claims, it cannot award her compensation for personal injury. Did the landlord mislead the tenant and breach her privacy when the tenancy began?

The tenancy began on 13 April 2021. The tenant says that she was not informed at the time that three previous tenants had passed away at the property. In evidence at the hearing the tenant said that she was unsure whether they had died in the premises or had died while they had been tenants of the premises.

Either way, that is not information that exposed the tenant to risk of harm or loss by being withheld and do not find it to be a breach of the landlord’s obligations under the RTA.

The tenant says that her right to privacy was breached when she moved into the premises because the housing support officer told a neighbouring resident who she was. The tenant says that it was crucial to her that her identity and whereabouts not be made public because she is at risk of harm from her son. Her evidence is that she has support from police and MSD around keeping her whereabouts confidential and that Kainga Ora were told that.

When asked how she was aware of the disclosure, the tenant said that as she was moving in, the neighbour said, “hello [name redacted]” and knew she had two dogs.

While I understand it may have been disconcerting to the tenant to think that the landlord had disclosed who she was and where she was living, the evidence does not disprove that, as the landlord asserts, nothing more was said to the neighbour than words to the effect, “..your new neighbour is [name redacted] and she has 2 small dogs”, as part of helping the tenant be welcomed to the complex.

I do not find that to be a breach of the landlord’s obligations under the RTA. Did the landlord breach its obligation under Section 45(1)(a)?

Section 45(1)(a) requires a landlord to provide the premises in a reasonable state of cleanliness.

The tenant says that when she moved in there was an awful smell of blood and urine in the premises. That allegation is not supported by evidence or of any complaint having been made at the time, although it was raised as a complaint, along with other issues, in a letter sent to the landlord on 2 September 2022.

There is no evidence of loss and exemplary damages cannot be awarded. Section s.109(2) provides that for a claim such as this, “A landlord or a tenant may not apply under subsection (1) later than — 12 months after the date of commission of the unlawful act in the case of any other unlawful act.” Did the landlord breach its obligation under Section 45(1)(b)?

Section 45(1)(b) requires a landlord to 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. Utility Room Floor

The tenant says that not long after moving in she fell through the floor of a utility cupboard next to the water cylinder. She says that the floors in the toilet, bathroom and washhouse had been replaced after a flood but that due to poor workmanship, this piece of the floor had not been replaced, with vinyl glued over water damaged chipboard flooring.

The landlord’s evidence is that those floors had not been damaged or replaced.

The evidence provided shows that the part of the floor the tenant fell through was not in a safe, sound condition. It was not in a reasonable state of repair.

Failing to provide the floor in reasonable condition breached the landlord’s obligations under s.45(1)(b). The tenant should be compensated for the effect of that breach on her use and enjoyment of the premises.

Exemplary damages should not be awarded because: a. the evidence does not prove the landlord was aware of the issue, which would have made the breach intentional; and b. the event occurred in 2021, and this application was brought outside the period during which exemplary damages could be claimed (s.109(2)). Access Ramp

The tenant has provided photographs of a ramp to the door that was built by the husband of a previous tenant. The tenant says it was dangerous as the wooden frame under the ramp itself was uneven and failing and because the ramp only had one handrail, where two handrails were required to meet the Building Code. The tenant says she had numerous falls on the ramp before getting help to remove it and construct some steps instead.

The photographs of the ramp and the material it was made from satisfy me that the ramp was not in an adequate state of repair. I find it more likely than not that the ramp was of a nature and incline that required 2 x handrails to meet the building code.

Although the landlord did not install the ramp, it was provided with the premises, and the landlord had a responsibility to ensure it was compliant and in a reasonable state of repair. I find that obligation was breached.

The tenant should be compensated for the effect of the breach on her use and enjoyment of the premises and for the cost of removing and replacing the ramp. For the reasons already given no award of exemplary damages can be made. Bathroom Leaks

The evidence shows that there were ongoing issues with water ingress into the bathroom. The landlord’s evidence notes the various work orders that were issued to try and address the problem, adjusting then changing the cap on the extractor outlet (after the tenant says one of the landlord’s tradespeople sat on it) and applying silicone to a significant hole on a roof join. The tenant says that during this time there were many occasions when she slipped on the wet bathroom floor.

I find a breach of the landlord obligations under s.45(1)(b) proved. The state of the premises allowed water into premises that should have been watertight. The roof required significant repair or replacement – although the tenants later refusal to allow work to be done on the premises prevented that happening during the tenancy.

The tenant should be compensated for the effect of that lack of repair on her use and enjoyment of the premises. The evidence shows significant efforts by the landlord to ascertain and fix the source of the leak and I do not find the landlord’s breach intentional, so no award of exemplary damages should be made. Did the landlord breach the tenant’s of right to quiet enjoyment of the premises?

Under s.38(2) RTA, “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 tenant came back to her flat in May 2024 after having been away, to find that scaffolding had been erected, with a footing in the tenant’s garden and some plants trampled. Her evidence, which I accept is that no notice or consent had been given for that to happen.

It is not unlawful for a landlord or landlord’s agent to enter the grounds (as opposed to the interior) of premises without notice (see. S48(7)). Nevertheless, even if exercising a legal right of entry, the landlord must exercise it in a way that respects the tenant’s right to quiet enjoyment of her home.

I find it that erecting scaffolding at the property with a footing in her garden and causing damage to her plants, without the tenant being asked or even notified it was going to happen, is a breach of the tenant’s right to quiet enjoyment of the premises. The effects were not ongoing and were relatively minor. A nominal award of compensation to recognise the breach is appropriate. Termination

The tenant had formed the view that the tradespeople used by the landlord were unsatisfactory. She denied access to the premises for any work to be done unless it was to be done by tradespeople approved by her. The tenant had no legal right to take that position.

The landlord then offered the tenant an alternative tenancy which she took.

The tenant says that the new tenancy was effectively forced upon her in retaliation for taking a stand to make sure repair work to the premises was properly done. She says she was railroaded into moving, against her will.

The landlord denies that was the case and says that the tenant signed a tenancy agreement for the new property.

It suited the landlord for the tenant to move, because repair work needed to be done to the premises and the tenant would not allow access. The evidence does not however prove any inappropriate coercion on the landlord’s part. Had the tenant opposed the move, the landlord would have been entitled to require the tenant to move by giving notice under s. 53B RTA.

That claim is declined. Compensation

As noted, the tenant’s claim is principally for compensation for the personal injuries suffered as a result of inadequacies with the premises. Those claims cannot be awarded by the Tribunal, for the reasons given.

I have found that the tenant is nevertheless entitled to compensation for the effect of those breaches on her use and enjoyment of the premises. That compensation is difficult to quantify arithmetically.

That is an appropriate situation to consider an award of general damages, the purpose of which is to compensate for pain or suffering or emotional distress” 1

As to quantification of general damages, in Tenant v Ezy Rentals 2 the Tribunal said: “By reference to Otautahi, I consider the bands that might usefully inform the Tribunal’s decision in this case are: A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00. C. At the upper end of the scale, where the party has experienced 1 See Birch v Otautahi Community Housing Trust [2020] NZDC 17667 (at para [35]) 2 Tenant v Ezy Rentals [2022] NZTT 4323927 hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00.”

Applying that approach here and bearing in mind that the damages are not to compensate for personal injury, I find that an award toward the higher end of the first scale would be appropriate. There were breaches of the landlord’s repair/ maintenance obligations, albeit unintentional and those breaches did have a significant impact on the tenant.

The tenant says that the health consequences, stress, worry and anxiety have been extreme. The evidence falls short of proving those effects were the direct consequence of the landlord’s breaches. Handrail

Finally, the tenant claims that the handrail she installed in the bathroom of the premises was not returned to her. The landlord says it was removed from the premises and taken to her new address. The tenant says the one brought to her is not hers and she refused to accept what was returned to her.

At the hearing the specifications of the rail the tenant installed in the premises were made clear. The landlord will provide a handrail of those specifications to the tenant. The landlord will find another use for the rail it removed from the premises, which the tenant says was not hers.

Because [The tenant/s] has succeeded with claims I must reimburse the filing fee.

Reasons