What was Tenancy Tribunal case 5254379 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 5254379?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5254379?

The dispute type was not classified.

Where can I read the official tribunal order for case 5254379?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12114495-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5254379 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 5254379?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5254379?

The dispute type was not classified.

Where can I read the official tribunal order for case 5254379?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12114495-Tribunal_Order_Redacted.pdf.

Flat 3, 21A Malvern Road, Morningside, Auckland 1022 Tenancy Tribunal Case 5254379 — Tenancy dispute

Order

The tenants’ names and identifying details must not be published.
The Tribunal declares that the tenancy contract between the parties is cancelled.
Joselito Valero must immediately pay [the tenants] $987.00, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,920.00 to [the tenants] immediately.
The tenants are not liable for rent, any break lease costs, or any other cost related to the tenancy.
The landlord’s claims are dismissed. DescriptionTenant Repayment of rent in advance$960.00 Filing fee reimbursement$27.00 Total award$987.00 Bond$1,920.00 Total amount landlord must pay tenants$987.00

Reasons

The tenants attended the hearing in person.
Mr Valero attended for himself.
Melissa Fullarton attended for Renthub. Mr Valero instructed Renthub as his letting agent and property manager. The claims
The tenants never moved into the premises. They purported to cancel the contract.
The tenants claim the landlord failed to provide the premises reasonably clean and in a reasonable state of repair. 1 They seek orders for return of the bond, the rent they paid in advance, and exemplary damages for the alleged failure to maintain. It is implicit they seek confirmation that they were correct to cancel the contract.
The landlord claims the tenants were not entitled to cancel the tenancy. He seeks rent until the end of the fixed term, which was the date new tenants moved into the premises, and the costs of finding the replacement tenants. 2 Issues for determination
The parties signed a fixed-term tenancy agreement. However, the tenants never moved in. The tenants say they did not move in is because the premises had a “foul smell so strong that they found it difficult to breathe or stay inside”. For them, the smell was intolerably bad and made them rightly concerned that the unit had an underlying hygiene problem that might risk their and their children’s health.
The landlord disputes that the premises had any significant odour problem and says that, in any event, it took timely steps to eliminate any odours when the tenants complained.
A preliminary issue for determination is whether the tenants were entitled to cancel the contract. If the tenants were entitled to cancel the contract, the rent they paid in advance and the bond should be returned to them. On the other hand, if they were not entitled to cancel the contract, the landlord should receive his rent to the date of the new tenancy and the costs of re-tenanting the premises.
Three issues arise from the legal principles in this case. Namely: a. Was it a term of the contract that the unit would be deodorised? b. If so, was there a breach of that term? c.If so, was there an implied agreement that the term was essential, or was the effect of the breach to substantially reduce the benefit of the contract or substantially increase the burden, or to make the benefit or burden of the contract substantially different? 1 The tenants also sought an order for reduction of the fixed-term contract. However that claim need not be discussed. I would have found, in any event, that the claim could not succeed.
Below, firstly, I discuss the events in some detail. Second, I set out the legal principles that give rise to the issues for determination.
Then I address the issues in turn. The events
The premises is a unit in a block of flats. The units are constructed of concrete block and concrete and are on two levels. They have the appearance of being constructed in perhaps the 1970s or earlier.
The tenants’ tenancy was set to begin on 23 April 2025. 2
The previous tenancy at the premises ended on about 12 March 2025. 3 They paid a cleaning company $80.00 to clean the carpets on that date.
Mr Valero appointed Renthub to act as his letting agent to find new tenants for the unit.
A potential tenant, a social housing provider, Kahui Tu Kaha had been interested in the unit but had some concerns that Renthub reported to Mr Valero on 1 April 2025: Hi Jojo, Just a quick update on Kahui Tu Kaha and their interest in the property. At this stage, they’re not 100% confirmed — their demand team is still reviewing internally, and they’ve raised a few concerns about the condition of the unit that they'd like to see addressed before moving forward. -Deep clean of all walls -Replace window latches -Replace net curtains in the living room -Align the laundry cupboard and install a safety latch -Re-silicone in the bathroom They’ve said they’re happy to have a second look once this work has been completed, so it could still be a live option — just dependent on these fixes being done first.
The tenants viewed the premises in about late March/early April 2025. The tenants told Ms Fullarton that they wanted to rent the premises but asked that the walls be cleaned, and strong odours be eliminated. These requests were significant to the tenants because they followed them up in an email to Renthub on 12 April 2025: 4 [P]lease confirm if the walls have been cleaned which we noticed were in an unclean state during viewing of the property and has the strong odors [sic] emitting from the unit has been addressed, these things we had ready mentioned to the agent during viewing.
On 14 April, Renthub reassured the tenants that: 2 Amended from 12 April 2025, at the tenants’ request. 3 This is the date of the previous tenants’ carpet cleaning invoice. 4 [tenant’s] email to Renthub, 12 April 2025. [T]he walls have been deep cleaned, and the odors [sic] that were present during the viewing have also been addressed.
Significantly for this claim, despite Renthub’s statement that the odour issue had “been addressed”, in fact Renthub had done nothing to address odours, such as the obvious step of having the carpets cleaned.
On 14 April 2025, the tenants and Mr Valero signed a fixed-term tenancy agreement with the tenancy set to commence on 23 April 2025 and to end on 22 April 2026. Rent was set at $480.00 per week. The tenants paid four weeks’ bond and two weeks rent in advance.
On 21 April 2025 - two days before they were due to move in - the tenants went to the unit to move in some of their belongings but detected the same unpleasant odour they experienced at their first viewing. The tenants emailed Renthub and Mr Valero that evening at 6:32pm: Kindly note that we have been to the property today and need to advise that the place is really stinking inside. There’s strong odours present and seems to be coming from the carpet. Please advise what has been done to address the odours as it is very much still present to the extend [sic] that its difficult to breathe and stay inside the property for long. I request your urgent attention please with this regards as we paid the bond and rent advance in good faith that the odour issue will be dealt with by you and the place will be deep cleaned or carpet replacement done if need be to get rid of the lingering bad smell.
Less than an hour later, Mr Valero emailed: A new carpet was installed November 2023 The previous tenant had the carpet shampooed by a professional cleaner before they left so I will ask them for the name of the company. Renthub also arranged for it to be deep cleaned recently. (Mr Valero’s comment that the previous tenant had the carpet shampooed was supported by an invoice from a professional carpet cleaner in the sum of $80.00. However, Renthub’s “deep clean”, was only for an “Urgent Deep clean Walls” at a cost of $149.99.) 5
The next morning, at 11:37am on 22 April 2025 the tenants emailed Mr Valero I went there yesterday to put stuff after we met and opened all the windows...And when I went around 7.00pm,. the odour remains. Sorry to say but that smell comes from the carpet (Rugs)...And its not good for us especially the kids. We r meant to shift tomorrow and I don’t think you can solve that issue so please it would be great if you could refund of 2 weeks rent and bond money...
At 2:29pm the tenants texted Mr Valero: 5 Deep Planet’s invoice dated 8 April 2025. Renthub had a message on its system dated 2 April 2025 from the cleaner saying, “Did the walls that were dirty...some marks are I the paint therefore didnt come off”. Please let me know if the odour will go...and from Tomorrow I have no place to stay....this should have done before....please sort out...
Mr Valero quickly arranged for the unit’s carpets to be professionally cleaned that very day (the day before the tenancy was to begin). 6
The tenants texted: ...we will check the house tomorrow once its cleaned...and it’s a request that we will stay in that flat only if you keep an open contract of the house so that we can move out if the smell is there in the future
On 23 April 2025 (the scheduled move-in date) the tenants went to the premises but deemed the premises still unfit to move into because they perceived that the odour was continuing.
The following day, the tenants emailed Mr Valero: I emailed you earlier regarding the odour that’s been coming out of the carpet..and as per discussion you said that the flat has been deep cleaned... but as from yesterday when I went to check the flat, the windows were open and doors closed...as I reached the window I could still smell the odour from carpet...I opened the door and went inside still the same... I don’t know how it’s been cleaned Sorry to say but I can’t let my family stir it that smelly flat.. So it’s a request is if you could refund my 2 weeks rent and bond money... I haven’t connected power in the flat...and the keys r under the outdoor unit...
At 4:18pm, the tenants emailed again, among other things that: I know I have signed the contract and seriously I wanted to stay there...and not being fuzzy...we had told the property manager about this when we first came to view the property...She told us she will sort out everything...the day I got the keys from u I mentioned u this...but its still the same...I cant keep my family with kids there in that flat...smell like PEE...only thing is the smell is unbearable...
In evidence before me, one the tenants said he had gone to the premises again on 24 April 2025 and could still smell the strong odour through an open window. He said, he decided then that “enough is enough”.
On 28 April 2025, Renthub formally took over the management of the tenancy. On 29 April 2025, Renthub emailed the tenants: [B]ased on inspections carried out by the owner, the cleaners, and ourselves as an independent third party, we do not believe there is an underlying issue beyond what might be a temporary smell from the cleaning process. Having the windows open and air flow, the cleaning smell will pass. I have been there this week and can not smell anything. I understand smell is different to everyone, but we believe it is above responsible standard.
The tenants responded: 6 Invoice of Professional Clean dated 22 April 2024. The landlord has failed to provide us a home which is healthy to live in , the foul smell coming from inside the house and even outside makes it difficult to breath or stay inside the house even for a few minutes let alone going to live there. The legal principles
Under s 45(1)(a) and (b) of the Residential Tenancies Act 1969 (RTA), landlords must provide the premises reasonably clean and in a reasonable state of repair. The section relevantly provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) 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...
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 7 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 8 “...the obligation of the landlord, under s 45, is to investigate and repair a 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...”
Under s 37 of the Contract and Commercial Law Act 2017 a party may cancel the contract if the other party breaches a term of the contract that the parties expressly or impliedly agreed was essential to the contract or would substantially alter the benefit or burden of the contract.
Section 37 provides: 37 Party may cancel contract if induced to enter into it by misrepresentation or if term is or will be breached (1) A party to a contract may cancel it if— (a) the party has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to the contract; or (b) a term in the contract is breached by another party to the contract; or (c) it is clear that a term in the contract will be breached by another party to the contract. (2) If subsection (1)(a), (b), or (c) applies, a party may exercise the right to cancel the contract if, and only if,— 7 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 8 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. (a) the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to the cancelling party; or (b) the effect of the misrepresentation or breach of the contract is, or, in the case of an anticipated breach, will be,— (i) substantially to reduce the benefit of the contract to the cancelling party; or (ii) substantially to increase the burden of the cancelling party under the contract; or (iii) in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.
I turn to the issues for determination.

Was it a term of the contract that the unit would be free from foul odour?

The tenants complained about the odour of the unit prior to agreeing to the tenancy. Moreover, s 45(1)(a) required the premises to be in a reasonable state of cleanliness. Cleanliness carries with it the obligation to remove the source of foul smells emanating from substances such as urine for example, even if the substance is undetectable other than by smell.
I am satisfied that it was a term of the contract that the unit would be deodorised.

Did the landlord breach the term?

The landlord did not deodorise the unit following the tenants’ request.
Renthub erred by telling the tenants that the odour had been addressed when it had not been addressed. However, Ms Fullarton said that she has a good sense of smell and considered that the unit’s odour was acceptable.
The tenants say the unit smelt disgusting.
The landlord disputes that the unit was unacceptably smelly. Mr Valero and Ms Fullarton gave evidence that the unit smelt acceptable to them. The landlord’s cleaner stated that “your carpet is not really dirty and smell is not that bad”, stating in an email dated 26 April 2025: We have done your steam carpet clean on Tuesday 22 April. Your concern was having bad smell from carpet And my team member suggest you that your carpet is not really dirty and smell is not that bad it's just you haven't open windows since last carpet clean was done. But because you call us to do carpet clean so he did in a professional way using shampoo and deodorizer. We did our job best it should not be smelling after that. Please leave your windows open to get it properly dry.
The evidence of the parties and witnesses about the smell at the premises is intrinsically based on subjective experience. That means I must gauge whether the tenants’ evidence about the smell establishes that the foul smell can establish the bad smell existed at an objectively unacceptable level. So, if the tenants are excessively sensitive to odours than an ordinary person with a reasonable sense of smell, their assessment of the acceptability of the odour will be called into question.
I found nothing in the tenants’ demeanour to suggest their evidence was not genuine. The communications between the parties indicate that the tenants had every intention of moving in as they had contracted until just before the tenancy when they experienced the very same odour that they had complained of. I accept the tenants honestly believed the unit emitted a disgusting smell. It is hardly surprising that the tenants actually experienced the same smell as they experienced before given the landlord had taken no steps to address their concern about it.
I find it probable that the premises did smell bad. Ms Fullarton said they unit did not smell bad, but no one suggested that there was no smell. If the landlord or Renthub had disagreed with the tenants’ claim at the viewing that the unit smelt bad, they should have told them at the time.
It is plausible that the unit continued to smell bad at an objectively assessed level and I find it proven on the balance of probabilities.
Mr Valero attempted to address the smell at the eleventh hour, but it was quite probably too late to eliminate the smell by the next day.
It follows, I find the landlord breached the term.

Was the term essential or did breach of the term substantially affect the contract?

The tenants spelt out their concern about a foul odour at the unit from the outset. They only agreed to the tenancy on the basis that their concern would be addressed.
I consider that the parties impliedly agreed that addressing the foul smell was an essential term of the contract. No one would want to live in a place that emanated a disgusting smell. Ordinarily, one would anticipate that eliminating such odours was achievable.
Nine days before the tenancy was due to begin, Renthub reassured the tenants that “the odors that were present during the viewing have also been addressed”.
Sadly, Renthub had done nothing to address the odour.
When the tenants returned to the unit two days before the tenancy was due to begin, they found the odour was still there. They were led to believe that they odour “had been addressed”, yet the odour remained.
In the circumstances, how could the tenants have any confidence that the odour they found so disgusting could be eliminated? They had been told that steps had been taken to eliminate the odour already, yet the odour was still plainly detectable to them, and in their assessment no better than when they first experienced it. The tenants naturally would have been concerned that the odour was an intractable problem.
Mr Valero had the carpets cleaned the day prior to the tenancy beginning. However, I accept the tenants’ evidence that when they went to the premises they could still smell the same underlying odour. It is possible that some of the odour the tenants experienced was from the cleaning chemicals and it is possible the odour would have improved over time once the carpets dried out, but that does not change the fact that the odour was still present.
Even if I were wrong in my finding that the parties impliedly agreed that removal of the odour was an essential term, I would find nonetheless that the breach of the term substantially affected the benefit and burden of the contract in the terms of s 37(2)(b).
That being so, the tenants were entitled to cancel the tenancy agreement. Conclusion
I am satisfied that the tenants genuinely experienced a disgusting odour at the premises which was not eliminated by the date they were due to move in.
The landlord’s failure to eliminate the odour by the commencement of the tenancy was a breach of a term of the contract.
The term was impliedly agreed substantially affected the benefit and burden of the contract and made for a substantially different.
Therefore, the tenants were entitled to cancel the contract.
If follows, the tenants are not liable for rent or for the landlord’s costs to re-tenant the premises.
The landlord must return the tenants’ rent in advance. The bond is to be released to the tenants.
The landlord must reimburse the tenants for the filing fee. 9
The landlord’s claims are dismissed. Non-publication
The tenants seek non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 10
The tenants have wholly succeeded in the proceedings. I do not consider that publication is in the public interest or justified by the tenants’ conduct.
The tenants’ application is therefore granted. 9 Residential Tenancy Act 1986 (RTA) s 102(4)(a). 10 RTA s 95A(1).

Tenancy Tribunal case 5254379 — Tenancy dispute at Flat 3, 21A Malvern Road, Morningside, Auckland 1022

Tenancy Tribunal case 5254379 — Tenancy dispute at Flat 3, 21A Malvern Road, Morningside, Auckland 1022

Order

Reasons

Was it a term of the contract that the unit would be free from foul odour?

Did the landlord breach the term?

Was the term essential or did breach of the term substantially affect the contract?

Order

Reasons

Was it a term of the contract that the unit would be free from foul odour?

Did the landlord breach the term?

Was the term essential or did breach of the term substantially affect the contract?