What was Tenancy Tribunal case 5265964 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 5265964?

This Case And The Tribunal Orders Su…: $2,000.00 awarded to tenant

What type of tenancy dispute was case 5265964?

The dispute type was not classified.

Where can I read the official tribunal order for case 5265964?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12843128-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5265964 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 5265964?

This Case And The Tribunal Orders Su…: $2,000.00 awarded to tenant

What type of tenancy dispute was case 5265964?

The dispute type was not classified.

Where can I read the official tribunal order for case 5265964?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12843128-Tribunal_Order_Redacted.pdf.

571 Wanganui Road, Marton, RD 2, Marton 4788 Tenancy Tribunal Case 5265964 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5265964 — net $10.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
this case and the Tribunal orders suppression of the tenants’ names and identifying details. 2. The landlords are to pay	$2,000.00	this case and the Tribunal orders suppression of the tenants’ names and identifying details. 2. The landlords are to pay
Net award	$10.00
Total payable by Landlord to Tenant	$10.00

Both parties attended the hearing. The tenant’s claims

The tenants’ application was for compensation and exemplary damages for: a. Breach of the tenants’ right to quiet enjoyment during renovations to the property and from visits made by the landlords and their contractors. See section 38 Residential Tenancies Act 1986 (“RTA”). b. The landlords’ failure to maintain the property by not completing the renovations in a timely manner. See section 45(1)(b) RTA. c. Breaches of the Healthy Homes Standards (“HHS”) in relation to draughts, ventilation in the kitchen and water ingress from the gutter system. See section 45(1)(bb) RTA. d. The landlords’ and their tradespersons’ use of the tenants’ power. e. The landlords terminating the tenancy knowing that they were not entitled to do so, See section 60AA RTA. f. The landlords issuing a termination notice that was retaliatory. See section 54 RTA. Standard of proof and evidence

In considering the claims, the standard of proof is on the balance of probabilities. In other words, the tenants must establish with evidence that their claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.

The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.

Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be decided.

While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.

By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.

It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.

The Tribunal must also have regard to the general principles of law and the substantial merits and justice of the case, as required by section 85(2) RTA.

It is intended that this order be as concise as possible to convey the essential facts, the law and the Tribunal’s reason for its decisions. The parties’ evidence

The tenant provided the following evidence: a. In January 2024 the tenants and the landlords agreed to proposed renovations to the kitchen and a bathroom and the installation of some double-glazed windows. b. Renovations began on 15 May 2024 with the removal of the rangehood, some kitchen cabinetry and a wall in the kitchen and a support beam was installed. A toilet was also removed and a small sewing room became unusable as it was to be converted into a new entry to the property. c. The installation of the windows began on 23 May 2024 and was completed on 13 June 2024, despite the landlords having informed the tenant that the installation would take two or three days. d. The new windows were not sealed until 7 June 2024, leaving large gaps which made it impossible to heat a large area of the property. e. A large bay window could not have the glass installed and so was boarded up until the correct glass was available. This also allowed substantial draughts. f. Because the gaps around the new windows made the house so cold, the tenants, their five children and two other adults who lived in the property, could not live in the kitchen/living area of the house and so lived in the other end of the house. g. Cold wind, debris and dust entered the property through the gaps around the windows and the disconnected rangehood flu. h. Because of the gaps around the windows, a number of rodents and insects entered the property. i. There was a gap around the taps in the laundry where a hole had been cut and which also allowed a draught. j. The window installers left a large pile of debris at the front of the house until the landlords arranged to have them remove it. k. The tenants were inconvenienced by the landlords and contractors coming to the property on a number of occasions to measure and prepare quotes. l. The renovations to the kitchen impeded their ability to use the kitchen. There were only two power points available and they had to use extension cords. m. The shower in the main bathroom was removed on 8 October 2024. This left the occupants with just an ensuite bathroom to use. n. During an inspection on 9 September 2024, the parties discovered an area of mould in ceiling of the toilet room from which the toilet had been removed. The mould was not removed until 9 October 2024 and the landlord’s’ contractor did not take any precautions around disturbing the mould when it was removed. o. The gutters at the property overflowed and the tenants complained to the property manager at the start of the tenancy. Nothing was done and so the tenants cleaned them out themselves as rainwater was their water supply. p. The tenants raised this issue in a 14-day notice issued to the landlords on 27 August 2024. The landlords had the gutters cleaned out on 7 September 2024. q. The overflow from the gutters caused puddles around the house, made the deck slippery and the tenants had to build a bridge to get to their clothesline. r. The work on the kitchen and the bathroom ceased in October 2024 and no further works were completed by the end of the tenancy on 9 December 2024. s. The landlords kept visiting the property at least once a month. The tenants believed that the landlords were “spying” on them because they always made sure the tenants knew they were coming or that they were present. t. The tenants discovered that there was no separate power meter for the large shed which was excluded from the tenancy and was used by the landlords and their contractors. They found that a light was left in the shed on from 10 October to 2 November 2024. The landlords’ tradespeople had also used the tenants’ power while they worked at the property. The tenants also claimed that they had to use more power to heat the property while the new windows were unsealed.

The landlords provided the following evidence: a. The tenants consented to the renovations as they would benefit from the improvements to the property. b. The landlords employed reputable tradespeople. The delays were beyond the landlords’ control. c. All the windows were removed and replaced within three days, except for the large bay window. It required new glass to be ordered. It was boarded up and any gaps around it were sealed three days later. d. Gaps around the laundry and bathroom windows were fixed a couple of days after installation. The gaps were only an absence of trims around the windows which did not mean that the windows were not sealed. e. The tenants did not complain of any issue with rodents or insects until the last weeks of the tenancy and did not provide any evidence in support of these claims. f. The debris was removed by the contractor once it was established that it was its responsibility. g. The extractor fan flu was capped in June 2024. h. The kitchen remained functional throughout the renovations as only a single section of cabinetry and a wall were removed. Photographic evidence of the presence of the available power points was provided showing that there were more than just the power points on the stove available and that the kitchen was still able to be used with minimal inconvenience. i. The tenants’ attitude towards the landlords’ contractors caused them to refuse to work on site. The landlords provided an email from their builder stating that one of the tenants was “obstructive and verbally abusive. He regularly acted in an intimidating way towards me and other tradespeople”. The builder also noted that because the tenant became “so aggressive and verbally abusive” on 7 October 2024 that he left the site and informed the landlords that he refused to work in these conditions. j. The landlords were advised by their property manager that the gutters had been cleaned out before the start of the tenancy. They had not heard of any complaint and the routine inspection reports from September 2023 and April 2024 do not record the tenant making any complaint or request about the gutters. When they received the 14-day notice, they arranged to have the gutters cleaned out. k. The tenanted premises were only part of a much larger rural property owned by the landlords. The landlords live in Wellington and came up to the property for routine chores such as spraying, fence-mending and tree work. When they required access to the premises, they gave the tenants the appropriate notice. They provided the Tribunal with a schedule of their visits, the purpose of the visits and the notice given where required. They denied that they had any intention of “spying” on the tenants or having any other motive than to progress the renovations and attend to required works on their rural land. l. The landlords explained that the only power used in their shed was for a small fridge/freezer and an electric jug. They calculated that the power use was of minimal value. m. The mould in the toilet had not been discovered because this room was not being used after the toilet had been removed. The mould was simply cleaned away by the landlords’ builder and has not reappeared. The tenant has failed to show that any special procedure was required for the removal of ordinary, household mould. Breach of quiet enjoyment claim: consideration and decision

It is clear from the evidence of both parties that they were all naïve and unreasonably optimistic about the ability of tradespeople to start and complete works within agreed timeframes. This has led to an unpleasant and frustrating experience for both parties which has resulted in the breakdown of their relationship, the end of the tenancy and this Tribunal hearing.

It is well accepted by the Tribunal and the District Court that ongoing and intrusive building work at or in the premises is a breach of a tenant’s right to quiet enjoyment. The evidence of the tenant has persuaded the Tribunal on the balance of probabilities that the tenants have suffered a breach of their quiet enjoyment of the property due to the renovations of the landlords.

The question is whether the tenants received what they bargained for when they agreed to rent the property for a rent of $750.00 per week in April 2023. While they consented to the renovations being carried out while they remained in the property, this does not mean that they are not entitled to compensation for the disruption and lack of amenities. Their consent is relevant to some of the tenants’ other claims which will be considered later.

The Tribunal accepts the tenants’ evidence that: a. There were gaps left around the replaced windows which caused those areas to be cold and draughty. This was for an agreed period of three weeks. b. While the kitchen remained functional, the tenants had to live with a degree of disruption caused by the removal of some cabinetry. c. There were breaches of the tenants’ quiet enjoyment caused by rubbish inconsiderately left by the window contractors, the presence of contractors in the property, a small increase in power use by the contractors and the landlords and several visits by the landlord and its contractors in relation to the proposed works. d. The tenant was deprived of the use of one toilet and a shower.

As the tenants have not provided any supporting evidence, they have not proven that there was any interference to their quiet enjoyment by an increased presence of rodents or insects during the renovations. Nor have the tenants persuaded the Tribunal on the balance of probabilities that the mould in the unused room caused any breach to their quiet enjoyment or that it was removed in an unsafe or inappropriate manner.

The Tribunal accepts the landlords’ evidence that later in the tenancy, the tenants did not help the situation by taking an interfering stance with the landlords’ contractors.

The most significant loss of amenity was the period during which the windows were not sealed. The tenants also had one less toilet during the renovation period and one less shower for the last two months of the tenancy. The tenants’ entitlement to privacy and quiet was undoubtedly affected by the presence of the landlords’ contractors. The landlords and their contractors will have used a small amount of power paid for by the tenants. On the evidence before the Tribunal, it does not appear that the alterations to the kitchen facility were more than relatively minor and therefore had a relatively small impact on the tenants’ ability to use the kitchen fully.

It is necessary to assess globally the compensation payable for the lack of amenity which the tenants suffered during the relevant periods, the breaches of their quiet enjoyment by the presence of and visits from contractors, the small amount of power used by the landlords and their contractors having considered the factors referred to above.

The period from when the renovations started to the end of the tenancy was nearly 27 weeks. The rent received by the landlord during this period was approximately $20,000.00. It is appropriate that the tenants be compensated in the sum of 10% of this figure being $2,000.00.

The landlords supplied a log of their visits to the tenanted property and their adjoining property, together with details of the notices given to the tenants where required. These do not disclose any instances of any unlawful entry by the landlord into the house property and nor do they disclose that the landlord was unreasonably coming onto the outside of the property. Their evidence does not support the tenants’ claim that the landlords were spying on them. There is no evidence that the landlords were harassing the tenants by their visits as required under section 38 RTA for the award of exemplary damages.

The tenants’ claim for exemplary damages for breach of quiet enjoyment is dismissed. Failure to maintain: consideration and decision

The mould in the converted toilet was only discovered by the tenant in September as it was in a room with the door always closed. Given that this room was not used by the tenants as its conversion to a pantry had not been completed, it was appropriately remedied by the landlord within a reasonable period of time. While the Tribunal can appreciate the tenants’ concerns given their specific health issues, they have not provided any evidence that the mould was of any specific kind that required specialist treatment. The landlords’ obligations under the Health and Safety at Work Act 2015 are between the landlords and its contractors, not between the landlords and the tenants.

There was no evidence supplied in support of the tenants’ claim that there was a rodent or insect problem.

While the tenant provided photographic evidence of overflowing gutters, there is no evidence that they notified the landlords of any required work until their 14- day notice of 27 August 2024. The landlords then remedied the issue within a reasonable period of time.

The Tribunal is not persuaded on the evidence before it that there was any obligation on the landlords to take any further steps in relation to the gutters.

The tenants’ 14-day letters of 27 August 2024 also required the landlords to complete the renovations. These cannot be considered maintenance issues. They are renovations which the tenants consented to. The inconvenience they caused the tenants have been compensated under the breach of quiet enjoyment claim and it would be unjust to award any further sum.

The tenants’ claims for a failure to maintain are dismissed. Breaches of HHS: consideration and decision

The landlord provided in evidence a copy of the HHS Statement completed by an independent, experienced contractor completed at the start of the tenancy. It shows that there were no outstanding issues and that the property was compliant.

The tenants’ supporting evidence was a letter from a healthy homes assessor from a charitable trust dated 15 October 2024. It identifies the absence of the extractor fan in the kitchen, gutters that do not function properly (“With any amount of rain it appears they would overtop and spill water next to the foundation, which then could make its way under the home...) and that “some of the underfloor insulation has fallen down, and upon further inspection part of the floor has not been insulated.”

The tenants’ claims included breaches which occurred after the renovations started: draughts caused by the window installation and the lack of ventilation in the kitchen.

The only reason that the property ceased to comply with the HHS in relation to the kitchen extractor fan and the draught stopping requirements is that renovations were being undertaken which the tenant consented to. It is not unreasonable that the landlord be exempted from the requirements of the HHS while the renovations were being undertaken. This should have been reasonably foreseeable by the tenants at the time they gave their consent. Compensation has been awarded to the tenants for the inconvenience caused. It would not be just to award the tenants exemplary damages for acts by the landlord which the tenants had consented to.

The claim in relation to the gutters has already been considered and the Tribunal is not persuaded that the tenants’ evidence establishes that the landlords were in breach of the HHS. The tenants’ report states that “it appears they would overtop”. That the gutters required cleaning is a maintenance issue which was dealt with by the landlord in a timely manner as discussed above.

The landlord provided evidence that a plumber had been instructed on 10 September 2024 to inspect the roof, replace the toilet ballcock and “look at the guttering and drainage”. There was no evidence that any follow-up work to the gutters was required.

The landlords’ HHS Statement does not record any issue with the insulation or the gutters. This was a report prepared by a suitably qualified professional. The tenants’ letter does not persuade the Tribunal that the landlords’ HHS Statement is incorrect or invalid. The two reports are simply in conflict. Had the tenancy continued and notice of termination not already been issued, the landlord may have undertaken further investigations, the costs for which the tenants would have been liable if they showed that no further action was required.

The tenants’ claims are dismissed. Termination without grounds

A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application. See section 60AA RTA.

For the tenants to be successful in their claims pursuant to section 60AA RTA they must show that at the time that the landlord terminated the tenancy that they were not entitled to give that notice.

The landlords’ termination notice was issued under section 51(2)(f) RTA which provides that the landlord can issue a 90-day termination notice if: “Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin or material steps towards it are to be taken, within 90 days after the termination date.”

There can be no argument that the landlord had started extensive alteration work, nor, on the tenants’ own evidence, that it was not reasonably practical for the tenant to remain in occupation while the work was undertaken. The landlords had tried the approach of leaving the tenants in residence, but this had been a failure as evidenced by the tenants’ multiple claims against the landlord.

The landlords therefore were entitled to give the notice of termination on the grounds specified in their notice.

The tenants’ claim is dismissed. Retaliatory notice

Section 54 RTA provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: “in 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.”

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see s 54(2), (3) and Schedule 1A RTA).

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 s 109(3) RTA).

The tenancy has ended and no application was made within 28-days of the termination notice seeking to set aside the notice.

Against the background already detailed, the relevant facts surrounding the issuing of the termination are: a. The tenants issued two 14-day notices to the landlords on 27 August 2024. b. The landlords emailed the tenants on 8 October 2024 complaining of one of the tenants’ behaviour towards the landlords’ contractors. c. There was an exchange of emails between the parties regarding the work that had been completed as a result of the tenants’ complaints. d. The tenants emailed the landlords at 2.55 pm on Thursday 10 October 2024 complaining about the manner in which the mould issue was dealt with. e. The landlords emailed the tenants the termination notice at 10.19 pm on the same day, 10 October 2025.

There are three issues to consider: a. Does the termination notice comply with section 51 RTA? b. Have the tenants proved that, in terminating the tenancy, the landlords were motivated wholly or partly by the tenants exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlords? c. If so, were the landlords justified in giving the notice because the tenants’ issue or complaint was frivolous or vexatious?

The landlords’ termination notice complies with section 51 RTA.

The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.

Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.

In this case, the Tribunal has been provided with copies of numerous complaints made by the tenants during the last months of the tenancy. The landlords have dealt with them all while clearly becoming frustrated with the tenants and the delays which the tenants began to cause towards the end of the tenancy. They began to regret their decision not to terminate the tenancy while the renovations were undertaken and that their decision to terminate was made because they could not see that the works could be completed with the tenants living in the property.

The tenants’ frustration with the process is understandable and the Tribunal has awarded them compensation to reflect this. The compensation recognises the inconvenience and stress they suffered and that their claims in relation to this were neither frivolous nor vexatious.

A notice of termination given for genuine and fair reasons will not be considered retaliatory. Given the increasing animosity shown by one of the tenants towards the landlords’ contractors and the tenants’ repeated complaints about what they were experiencing, it was not unreasonable of the landlords to decide to terminate the tenancy. The reason given was clearly justifiable: it was not possible for the renovation work to be completed while the tenants remained in the property. The parties had tried this and it did not work to either party’s satisfaction.

The Tribunal concludes that despite the timing of the landlords’ termination notice, it was not retaliatory as the landlords had a genuine and fair reason to terminate the tenancy.

In any event, it would not be just in these circumstances for the Tribunal to award exemplary damages because the landlords’ decision to terminate the tenancy was fair and reasonable given the serious difficulties both parties faced in having the renovations completed while the tenancy continued.

The tenant’s application is dismissed.

Reasons

Claims and awards in Tenancy Tribunal application 5265964 — net $10.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
this case and the Tribunal orders suppression of the tenants’ names and identifying details. 2. The landlords are to pay	$2,000.00	this case and the Tribunal orders suppression of the tenants’ names and identifying details. 2. The landlords are to pay
Net award	$10.00
Total payable by Landlord to Tenant	$10.00