Published tribunal order
Tenancy Tribunal case 5190411 — Tenancy dispute
Decided 15 May 2025 · Published 15 May 2025 · Application 5190411
- Exemplary damages
- Harassment
- Leaks
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the landlord’s and tenant’s name and identifying details.
- [The landlord/s] must pay [The tenant/s] $27.00 immediately, calculated as shown in table below:
- All other claims made by tenant are dismissed.
- The landlord’s application is dismissed.
Reasons
- Both parties attended the hearing.
- The tenancy commenced on 24 June 2024 and is for a fixed term expiring on 24 June 2026. The parties are the tenants and [ landlord ] who is trustee for the [ landlord].
- On 07 March 2025, the landlord filed an application to terminate the tenancy. The grounds upon which the application relies are unclear, and I will address these later.
- On 22 March 2025, the tenant filed a counterclaim alleging that the landlord: i. Failed to maintain essential services, namely a continuous water supply, Section 45(1) (c) Residential Tenancies Act 1986 (the “Act”) (work order, compensation of $2,000.00, and exemplary damages) ii. Unlawfully entered the property and /or interfered with the tenant’s reasonable peace, comfort, and privacy amounting to harassment (Section 48 & 38(3) of the Act) (Exemplary damages), iii. Sought to end the tenancy because the tenant was attempting to exercise their rights (Section 54 of the Act) (Exemplary damages $4,000.00), iv. Attempted to terminate the tenancy knowing that they did not have grounds, (Section 60A of the Act) (Exemplary damages) v. Failed to lodge the bond within the required period (Section 19 of the Act) (Exemplary damages),
- In brackets next to each claim is the compensation sought. In addition, the tenant seeks general damages of $6,000.00 for emotional distress and educational impact.
- The onus of proving these claims rests with party bringing the claim. The standard required is on the balance of probabilities. In this case each party must establish more likely than not that the other has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Failing to provide continuous source of water.
- Around July 2024 one of the tenants learned that they had a kidney condition requiring weekly dialysis treatment. There is no dispute that the tenant’s condition was unknown to either party at the commencement of the tenancy. The treatment can be carried out at home. The tenant requested, and was granted, the landlord’s permission for Te Whatu Ora to install a dialysis machine at the property.
- Around November 2024, the tenant states that they discovered that the property was not on the local mains water system and was supplied by water from a bore which was collected in a tank approximately 300 metres away and then pumped to the house. The tenant states that during the pre-tenancy inspection, it had not been pointed out that the property was not on the local mains water system. They assumed, due to its proximity to the local township of [ suppressed], that it was. The dialysis machine requires a continuous flow of water. The machine requires at least 500 litres of water per session. Up to this point there had been no issues with the water supply.
- On 06 December 2024, the water supply stopped without warning. Between then and March 2025, the tenant stated that there had been seven occasions where the water had stopped. Some stoppages coincided with a dialysis session, requiring hospital admission to complete the treatment. The tenant states that the landlord has had the tank filled five times, but the supply issue remains unresolved. The tenant has calculated that a full tank should last at least a month, if not longer.
- The tenant states that the landlord has failed to provide a reliable source of water breaching their obligations under the Act.
- The property is a three-bedroom 1930’s bungalow in a rural setting. The landlord states that the water is sourced from a bore on the property, collected in a 16.000 litre tank, and pumped to the house. The property is one of four on a small farm. The landlord states that the tank had been used to supply four houses, their occupants, and cattle troughs, and in the 80 years or so the water system had operated, that the issue had not occurred before.
- The landlord states that the farm is no longer used for cattle and is primarily leased for crop growing, which does not require irrigation. Two of the properties and the troughs had been disconnected, leaving only the tenant’s property, and their own house nearby, which they seldom used as they usually resided elsewhere, connected. The landlord further states that they can also isolate their own property from the tank while they were away.
- The landlord states that when advised by the tenant that there was an issue they had responded quickly and arranged for the tank to be filled. However, the next day the tank was empty. Upon investigation the landlord discovered that a child from another property had accidently opened a tap, draining the tank. They have taken steps to ensure this cannot occur again. The landlord has installed a new pump, which draws the water from the bore and then pumps it to the house. The lines run over ground and are therefore easy to inspect for leaks.
- The landlord denies failing to disclose that the property was not on a mains supply, and claims that bore water, being free from chemicals, was a selling point.
- The landlord states they previously resided at the property for several years and are familiar with the water system and had personally checked it on several occasions without detecting any leaks or faults. The landlord states there had been a drought in the area and the water level in the tank has been extremely low, indicating a reduction in the underground water supply, which is beyond their control. The landlord states they are extremely concerned that the issue is posing a risk to the health of one of the occupants, and they have paid to have the tank filled five times a cost of $265.00 each time. The landlord states this is not financially sustainable.
- The landlord states that a full tank should last at least a month, even with dialysis usage, and that the water company had advised that a full tank should last a family of three two or three months or more. The landlord has obtained a quote for $20.000 to have additional water tanks installed next to the house to collect rainwater, but state at this time they lack the funds to proceed. Law
- Under section 45(1) (ca) of the Act the landlord must provide an adequate means for the collection and storage of water if there is no reticulated (mains) water supply.
- In Collins and Bertoni v Professionals Hutt City Limited, DC Wellington CIV 2009 085-001431, 24 February 2010 the Court stated: “I consider that the obligation of the landlord, under section 45, is to investigate and repair the defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, I think, 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”. Decision
- The tenant’s claim is based on the belief that under the Act the landlord must provide a continuous water supply. However, this is not the case. Under the Act, where the property is not on mains supply. the landlord must provide and maintain an adequate means for the collection and storage of water but is not obligated to provide the water itself.
- Is the landlord obliged to provide more than one means of collection? In my view the answer is no. The landlord cannot control the natural source of the water that fills the tank. If there is no rain to replenish the underground supply, or to fill the tank, the landlord is not obligated to provide the water. Installing an additional tank next to the house to collect rainwater may or may not resolve the issue. In my opinion one adequately maintained means of collection and storage is therefore sufficient. I do not consider that a landlord is obliged to provide multiple means of collection and storage.
- If there is a defect or fault with the means of storage and collection, such as defective pumps, leaks etc then the landlord is obligated to address it. In this case there is insufficient evidence that the landlord has failed in their obligation to properly investigate the cause of the shortages. I am satisfied that the shortages are due to natural causes out of the landlord’s control. Accordingly, the claim is dismissed.
- During the hearing, it was noted that there is presently no way to monitor the water level in the tank from the house. To avoid the tenant experiencing unexpected water shortages the landlord may wish to consider installing a monitoring system from such as a visible float indicator. Unlawful entry and interference with reasonable peace comfort and privacy amounting the harassment.
- The tenant states the landlord unlawfully entered the property, without notice, and had interfered with their reasonable peace comfort and privacy.
- The tenant states that on 13 February 2025, in the early afternoon, they arrived at the property, and upon alighting from their vehicle, were approached by the landlord who said , “ Oi, we have a problem” , and then proceeded to berate the tenant about the up keep of the grounds , excessive pruning , and security lights that the tenant had installed, the position of which was disturbing the landlord.
- The tenant had installed a CCTV camera above their front door, and the incident was captured and has been provided to the Tribunal.
- There is nothing in the agreement stating that the gardens are the tenant’s responsibility, and that the trees remained under the landlord’s control. The landlord stated that, on or around October 2024, there had been a discussion about the pruning of the trees and shrubs that bordered the shared driveway, and that it had been made clear that, moving forward the tenant was not to prune the trees.
- The landlord states that on day in question, they had arrived home to discover that the trees on the boundary between the two properties had been harshly pruned, which had a significant impact of the privacy of both parties. The landlord stated they sent a text message to the tenant but shortly afterward witnessed one of the tenants return. The landlord accepted they had approached the tenant and raised the issue of the trees including the position of the lights which illuminated the landlord’s property.
- The tenant states that at the commencement of the tenancy there had been a discussion about the gardens but not the trees. The tenant accepted that, in October 2024, it had been made clear that they were not to touch the trees on the shared driveway but did not think this extended to those on the tenant’s property. The tenant accepted that they had harshly pruned the trees concerned but referred to photographs showing that they had started to grow back. Regarding the security light, the tenant stated they had repositioned it. Law
- Under section 48(1) and (2) of the Act, a landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections, repairs, and maintenance.
- Section 48 (7) of the Act states that in this section premises do not include land or facilities.
- Section 38(1) of the Act provides that the tenant shall be entitled to quiet enjoyment of the premises without interruption by the landlord or any person claiming by, though, or under the landlord or having superior title of the landlord.
- Section 38(2) of the Act states that a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
- In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated, “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents”.
- The question as to whether a tenant’s enjoyment of the property has been significantly impacted by the actions of the landlord will involve an objective assessment of the facts.
- Under section 39(3) an interference that also amounts to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded.
- Harassment is not defined in the Act. In the case of MacDonald v Dodds, CIV- 2009-019-001524, DC Hamilton, 26 February 2010, the Court considered harassment to mean "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person”.
- Black’s Law Dictionary defines harassment 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.
- These definitions suggest 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. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: “Although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.” Decision
- An unlawful entry requires an entry into, or an attempt to enter, the house itself. There is no evidence that this occurred. The incident arose out of a misunderstanding about responsibilities for the maintenance of shrubs and trees. Having heard from the parties and viewed the CCTV, which includes audio, I am not satisfied that the incident has significantly impacted the tenant’s enjoyment of the tenancy so as to amount to an unreasonable interference. The claims for unlawful entry and inference amounting to harassment are dismissed. Bond
- Under section 19(1) of the Act, a landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
- The landlord received the bond on 20 July 2024 and lodged it on or about 21 November 2024, more than 23 working days after it was paid. I am satisfied the landlord has breached the provisions of the Act and in doing so have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
- On or about 11 November 2024, the tenant discovered that the bond had not been lodged.
- The landlord stated that, at the time of entering into the agreement a close family member had been seriously unwell. They had completed the form and then overlooked lodging it. Shortly after being advised of the error, the landlord had the tenant complete a new lodgement form and the bond was lodged.
- There is no evidence that the non-lodgement necessarily had a significant impact on the tenant. However, the bond is the tenant’s money and should be treated as such. How to deal with bonds appropriately is clearly set out by Tenancy Services, and in the provisions of the Act. Landlords must be aware of their legal obligations. It is in the public interest that they do so. Considering the factors in section 109(3), I believe that an award of $150.00 is appropriate. Retaliatory notice and notice without grounds.
- The tenant states that, after repeated complaints about the water supply, the landlord has attempted to end the tenancy and that this was clearly retaliatory. They allege the landlord has made an application to the Tribunal seeking to terminate the tenancy knowing that they did not have valid grounds.
- Section 54 of the Act provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
- A claim under section 54(1) of the Act requires the landlord to have issued a valid notice to terminate the tenancy.
- Under Section 60AA of the Act, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching section 60AA is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
- Knowing or “knowledge” is not defined in the Act. In the case of Kerr v R [2012] NZCA 212, the Court, dealing with knowledge in a criminal context, held that knowledge meant “knowing or believing in a state of affairs”. Decision
- The tenant submits that the application for termination is the direct result of the issue with the water supply. They appear to be correct.
- The landlord has struggled to complete the online application. Shortly after attempting to do so, they sent a four-page letter to Tenancy Services seeking to explain their position, which was then uploaded. The application appears to seek termination on the basis that the landlord, has failed to remedy a breach incapable of remedy.
- In the letter, the landlord explains the circumstances and states that their application : “ most likely did not make any sense”, and that they could not refer to any applicable sections of the Act, further stating: “ ... could not get the system to accept what were my reasons” , adding that they wished to urgently speak with someone.
- In summary, the landlord’s letter explains that the tank is fed by a bore, and that they are at the mercy of the elements, and that they could not guarantee the tenant a continuous water supply, which was not their fault. That they were extremely concerned of the possible effect this may have on the tenant, and felt they had no option but to ask the Tribunal, for the benefit of both parties, to consider ending the tenancy.
- Under section 56 (1) of the Act, a landlord may seek to terminate a tenancy without notice on the basis that the tenant has committed a breach incapable of remedy, and it would be inequitable to refuse to do so. Under section 56(1) a landlord cannot seek to bring a tenancy to an end because they themselves cannot remedy a breach incapable of remedy.
- The tenant is correct that a landlord cannot seek to end a fixed term tenancy with notice but that the parties may bilaterally agree to end a tenancy. However, in this case no termination notices have been issued.
- Section 66 of the Act allows a party , landlord or tenant, to a fixed term to make an application to reduce a fixed term on the basis that there has been an unforeseen change in the party’s circumstances and any severe hardship which the applicant party would suffer would be greater than that suffered by the other party if the term where reduced.
- Based on the material provided with the application, the landlord is clearly unsure what grounds they are seeking to rely on. Arguably, the landlord may have had grounds to make an application under section 66. Whether such an application would then have been successful is a matter for the Tribunal. Also relevant is the fact that the tenant has told the landlord that they are obliged to supply water, when in law, they are not. Both parties have been mistaken as to their rights and obligations and have acted upon those mistaken beliefs.
- The landlord has not issued any notices to terminate the tenancy. I am not satisfied that the landlord has sought to end the tenancy knowing that they did not have grounds to do so. The claims are dismissed. General damages
- Regarding the tenant’s claim for general damages for pain and suffering, the only breach proven has been the landlord’s failure to lodge the bond. I am not satisfied that general damages for pain and suffering over and above the exemplary damages awarded where necessarily reasonably foreseeable i.e. a loss arising naturally from the breach or within the contemplation of the parties at the commencement of the tenancy. The claim for general damages is declined. Costs
- Under section 102 (4) of the Act the Tribunal has the discretion to reimburse the filing fee of a party that has been partly successful with their claim.
- The tenant has been partly successful, and an order is made for reimbursement of the filing fee. Name suppression.
- The landlord seeks name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- The tenant objects to the landlord having name suppression. Their objection is on the basis the belief that the landlord’s breaches are so serious that they warrant the publication of the landlord’s name. Under section 95A, the presumption is that a party who is wholly or substantially successful will be entitled to suppression as of right unless, it is in the public interest to deny suppression or there are any other grounds not to.
- In this case the landlord’s application has been unsuccessful, and the only the only breach proven against them is the failure to lodge the bond. In my view the landlord has been substantially successful in these proceedings and are entitled to name suppression. There is nothing regarding their conduct that justifies declining suppression.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in subsection (4). The Tribunal also orders suppression of the tenant’s name.