Published tribunal order
Tenancy Tribunal case 5258319 — Rent arrears at Unit/Flat Unit 3, 48 Aurora Terrace, Kelburn, Wellington
Decided 3 Jul 2025 · Published 3 Jul 2025 · Application 5258319
- Rent arrears
- Cleanliness
- Mould & damp
- Leaks
Party names are redacted in the official published order.
Order
- An application for suppression has been made and the Tribunal orders suppression of the names and identifying details of the tenants.
- The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat Unit 3, 48 Aurora Terrace, Kelburn, Wellington 6012 is reduced and now ends at 11:59pm on Monday 30 June 2025.
- Property Management Wellington Limited must pay [The tenant/s] $0.00 immediately in accordance with the following table:
Reasons
- Both parties attended the hearing. Mr Cook represented the landlord.
- The tenants seek to end their fixed term tenancy early and for compensation due to issues they have had with their kitchen.
- The landlord agrees to compensation although is unsure on quantum. They do not consent to the ending of the tenancy. Background
- The tenancy commenced in November 2024 on a fixed term basis for 12 months.
- On 7 April 2025 the tenants raised various maintenance issues with their property manager including the bowing of the kitchen ceiling. Their evidence is they were advised by the landlord’s employed repairman it was not an issue.
- On 8 April the kitchen ceiling commenced leaking sewage. The leak escalated over the evening. The tenants’ evidence is that they had to empty approximately two buckets of raw sewerage every two hours over the course of the night. They also had to dispose of all their food and remove their appliances.
- The landlord sent a plumber the following day who confirmed it was sewerage from the building’s plumbing (it is a six-unit property) which had burst. They repaired the leak and removed the contaminated ceiling and flooring sections. [The cleaning company] attended to clean and dry the area.
- The tenants were advised they could use the kitchen of an unoccupied unit in the upper level of the building until theirs was remediated.
- All four tenants relocated for the ensuing few weeks. [Tenant 1] remained residing elsewhere for five weeks due to health reasons.
- On 11 April the tenants advised Ms Charles their property manager that they had temporarily moved out and asked for a rent rebate, this was not approved.
- When they returned, they realised the alternative kitchen was not fully functional and advised Ms Charles. The evidence regarding how long those repairs took is disputed.
- On 15 April they formally sought an end to the tenancy. No response was received until 23 April when an email was sent regarding the insurance.
- On 25 April they served a 14-day notice to remedy on the landlord. Three of the tenants moved back in shortly after. It is not disputed that this Notice was not remedied within the required period.
- On 6 May the tenants again sought an end to their tenancy agreement. The response email from Mr Cook was regarding rent arrears.
- On 8 May the tenants applied to the Tribunal for relief.
- On 14 May the repairperson attended the property although no notice of his visit had been given. He was let in by the tenants in the interests of progressing the repair.
- At the date of hearing (26 May) the premise kitchen repairs were still not complete, and the tenants have paid full rent (excluding one week) since. No compensation has been paid or offered. The repairs are expected to be completed over the next week.
Should the fixed term tenancy be reduced/ended early?
- The tenants wish to end their fixed term early because they consider they have lost faith and trust in their landlord and cannot countenance how the tenancy can continue given its history.
- They say they were doing their best to keep an open line of communication with the landlord, but say their requests often went unanswered, and promises were made and then reneged on. They do not feel heard nor respected during this ordeal and consider that they only ever obtain a meaningful response when they issue a 14-day notice or Tribunal proceedings. They do not feel safe to continue a tenancy where they have to escalate matters in such a way to elicit any substantive response.
- Their submission is that they have suffered a period of prolonged uncertainty and anxiety as no meaningful response was being provided to their communications. This resulted in extreme pressure as they tried to deal with matters whilst undertaking university study.
- [Tenant 1] in particular considers that the landlord has failed them in a situation that was health endangering. His evidence is that he suffered respiratory issues as a result of the event and ensuing mould growth that went untended for over seven weeks. He says he has only recently been able to move back into the property because any lengthy period in the home caused him breathing issues until recently. He has provided evidence of seeking medical help and advising the landlord of this on several occasions. To have this advice ignored by the landlord is extremely distressing he says.
- The tenants say the impact of the event and failure to repair has been significant on them. The kitchen has no door, so the odour has permeated the house. They had to move out for a few weeks and their alternative kitchen is substandard. They do not feel the landlord has acted responsibly nor transparently as they have not been advised of progress at any stage. They feel the landlord has at times offered compensation or agreed to talk about ending the tenancy only to subsequently renege.
- Mr Cook accepts that there have been delays in communication and in the remediation work but considers they are not of sufficient extent to justify the ending of a tenancy. He apologises for the repair delays which were primarily due to the insurance company taking time. He has no explanation for the lack of communication. He says they are taking the matter seriously and endeavouring to work through it for the tenants. The law & discussion
- There are two relevant sections in the RTA. Firstly, section 56 which states that a tenancy may be ended by the Tribunal if a party has breached the tenancy agreement or RTA, the other party has served on them a notice to remedy, the notice has not been complied with within the required time and the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
- Alternatively, section 66 of the RTA allows the Tribunal to end a fixed term tenancy if there has been a change in the applicant’s circumstances, the change is unforeseen, and the applicant would suffer severe hardship if the term is not reduced which would be greater than the hardship caused to the other party if the term of the tenancy were reduced.
- I consider section 56 first.
- The tenants have served a 14-day notice to remedy on their landlord. 1 The remedies sought were: a. Provide a written response to their correspondence regarding the state of the property and their legal entitlements. b. Engage in good faith discussions regarding rent abatement, compensation for damages, and lease termination. c. Acknowledge the health impacts and hardship caused by the flooding event and the delayed response, and outline the steps that will be taken to prevent similar failures in the future.
- No substantive response was received by the landlord within the required time. Accordingly, I must consider whether the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
- The email evidence substantiates the tenants’ claims that emails went unanswered, the landlords position varied, and their concerns were not being responded to in a meaningful way. They were not told of progress and their health concerns were not acknowledged. 1 25 April 2025
- Compensation was certainly mentioned by the landlord at the outset 2 and subsequently, but not provided. I also accept the evidence that Ms Charles did indicate that ending the lease might be a possibility but then said it was not.
- The landlord was made aware the tenants had suffered ill health due to the contamination 3 and that they had moved out for a period. Despite this, meaningful steps were not taken to accommodate them, or even engage fully with them.
- The tenants are students, and their funds are limited. These events have rendered a financial, emotional and logistical burden on them whilst they are studying. I consider that tenants are entitled to rely on a reasonable level of service when contracting with professional property management companies, and these tenants have not obtained that in this instance.
- The landlord claims the tenants were already seeking to end their tenancy early because another tenant had vacated by consent however no evidence that this was a primary motivation has been presented.
- The District Court looked directly at the issue of inequitability to refuse to terminate in Huff v City Central Property Management [2020] NZDC 19229. Judge Rowe noted at paragraph 61 that the following factors are relevant when considering such an application (I note each one with my comments regarding this case immediately following): a. The history of the tenancy: this tenancy is halfway through its contracted term. 4 b. Whether there has been a persistent failure after repeated warnings: The tenants have attempted to engage with clear requests on a number of occasions, they issued a 14-day notice when a full response was not forthcoming and then filed proceedings when that went unmet. c. Whether the history of breaches was such it was unlikely the landlord would comply with their obligations in the future. The tenants provided evidence today that yesterday the trade 5 attended their property again without having given prior notice. This occurred only days after Mr Cook had heard the impact on the tenants of the trade’s first attendance without notice at the hearing. Further to that [tenant 1] provided evidence indicating that it was highly likely that Mr Cook’s email apology to them after they complained was generated by artificial intelligence. This they say, and I agree, indicates a 2 Email 9 April 3 Email 11 April 4 It commenced on 11 November 2024 5 Employed by the landlord lack of care and attention by the landlord to their interaction with the tenants. I also consider that none of the landlord’s submissions acknowledge the impact on the tenants of a lack of meaningful, consistent and lawful communication. The failures are acknowledged but not that the experiences have reframed for the tenants their ability to enjoy their tenancy. If the landlord does not appreciate this, it is likely to occur again. d. Whether the breach was inadvertent or deliberately committed. Here there was a long delay in maintenance and communication. The delays were acknowledged but no explanation given for them. e. The conduct of the tenants. The tenants have attempted to resolve this amicably on a number of occasions with the landlord and it was clear they only came to the Tribunal as a last resort. f. The gravity of the breach. The delays were lengthy but not exorbitant. It is the failure of the landlord to engage meaningfully with the tenants that has had the most impact for the tenants because it created uncertainty. g. Whether termination is a proportionate response to the breach. I consider it is. The landlord was given multiple opportunities to engage with the tenants, put into place a rent reduction, provide compensation, advise them of time frames and acknowledge their concerns, but they did not. Things do not seem to have changed even in the days since the hearing, accordingly it is not likely they will.
- Having considered all of the above very carefully, I find it just to terminate the tenancy. The tenants seek an end date of 23 June. Given the date of this order I consider four weeks a more appropriate 6 timeframe and accordingly direct that the tenancy is to end on 30 June 2025.
- As the tenancy is to end pursuant to section 56 of the RTA, I do not need to consider the claim under section 66 of the RTA.
Should compensation be ordered?
- The tenants seek compensation for the seven and a half weeks they have not had a kitchen in their unit and for lost food and towels as a result of the sewerage contamination.
- It is a well accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement. 6 See section 85 of the RTA
- The landlord did breach section 45 of the RTA. They should have sent an emergency plumber when raw sewerage commenced leaking into the tenants’ kitchen. They did stop the leak the following day, but it was many weeks before substantive work was undertaken to repair the kitchen.
- The tenants did have access to an alternative kitchen, but I accept their evidence on the difficulties they had with it given it could only be accessed from outside and was not fully functioning at the start. It was certainly better than having no kitchen however.
- I also accept that the situation has been very stressful for them and had an impact on [tenant 1]’s health. 7
- Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
- Having considered the matter holistically, bearing in mind the impact on the landlord of ending the tenancy early at a time when the market is relatively flat, I consider an award of $300 is just. 8 I have also taken into account that the tenants’ have had one week’s rent abatement already. Other orders
- Because [the tenant/s] have wholly succeeded with the claim I must reimburse the filing fee and approve their application for suppression.
- Because the landlord has not been successful in their defence, 9 I decline their application for suppression. I also consider it in the public interest to be aware of the name of the company given the way they have dealt with this situation.