What was Tenancy Tribunal case 5273261 about?

The tribunal order states: The claim is dismissed.

How much money was awarded in case 5273261?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5273261?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5273261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12137757-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5273261 about?

The tribunal order states: The claim is dismissed.

How much money was awarded in case 5273261?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5273261?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5273261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12137757-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5273261 — 14-day notice

Order

The claim is dismissed. The Tribunal declares that the tenancy agreement’s “no pets” clause does not apply to the tenant’s dog. The tenant’s dog may live at the premises.

Reasons

Both parties attended the teleconference hearing.
The landlord has applied for permanent removal of the dog at the premises or failing that, termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

The landlord has made the application to the Tribunal because the tenant is keeping a dog at the premises and has not removed the dog despite the landlords 14 day notice for it to be removed from the property.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
The tenant does not dispute that she is keeping a dog at the premises. She said that she is looking after the dog for her friend who is incarcerated. The tenant does not dispute that she is in breach of her tenancy agreement. She did not request consent from the landlord to keep a dog before bringing the dog to the premises. The landlord stated that the tenant would not have been granted consent to keep the dog if she has requested it.
The tenant lives in a one bed unit on the third/top level of a block of 3 units that is in a building of 18 units. There is a staircase joining the 3 units in the block of 3 units. The dog is a medium sized dog. The landlord had a complaint when the tenant swept dog faeces off her balcony to the lower level. The tenant accepted that this should not have happened and has not repeated that behaviour. The landlord stated that a complaint had been received that the dog had lunged at a person. The landlord provide evidence in support of that claim however. The tenant responded that the dog does lunge forward but it is a lunge because the dog is wanting to be friendly, not aggressive.
Currently the Residential Tenancies Act 1986 (RTA) makes no specific reference to tenants having a right to keep pets at a property or a landlord not being able to include a “no pets” clause in a tenancy agreement. There have been differing decisions in the Tenancy Tribunal regarding a tenant’s right to keep pets and a landlord’s right to ban pets from premises.
The RTA provides that a tenant has the right to quiet enjoyment of the premises and that the landlord shall not cause or permit any interference with the reasonable comfort of the tenant in the use of the premises by the tenant (s.38(1)&(2)). (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) 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 Tribunal in Mullavarapu v Wilkie [2023] NZTT 4421925 reasoned: The word “quiet” is used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”: Kenny v Preen [1963] 1 QB 499. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
It could therefore be decided that a tenant should be able to keep the dog because she is entitled to undisturbed occupation. The dog should be able to stay in order that the tenant is able to treat the property as her own home.
On the other hand, the Tribunal in Schmid v Murray TT 181/91, 6 June 1991 said: If a landlord and a tenant who, being in possession of all of the relevant facts and capable of exercising their judgement rationally, decide expressly or impliedly to agree to the landlord breaching one of his/her obligations under the Act, I do not consider that the tenant can later assert that in terms of section 11(3) such a waiver is of no effect. Quite apart from that offending common sense and fairness, it is contrary to fundamental contractual principles of estoppel and I do not believe that the legislature intended this legislation to depart from such a basic principle as that. Having given informed consent to the landlord’s breach of the tenant’s right to quiet enjoyment, the tenant could not “shelter behind” s11(3) of the Act.
Essentially what this decision is saying is that if a landlord and tenant contract to exclude pets from tenancy premises, a tenant has agreed to waive his/her right to quiet enjoyment and can’t later claim that the waiver is of no effect. The Schmid decision gives room for the Tribunal to enforce “no pets” clauses despite a breach of a tenant’s right to quiet enjoyment.
The Tribunal in Sunshine Property Group Ltd [2023] NZTT 4573029, 4638049, 4595209, 4612043 set out factors to be considered whether a “no pets” clause should be permitted. Adjudicator Kee determined that a ‘blanket’ no pets policy is not automatically lawful and enforceable. He set out factors he believed could be considered in determining whether a pet should be able to be in a property, whether there was a no pets policy or not. These include: i. the size and type of animal; ii. whether the animal has caused any damage to the premises or disruption to the neighbourhood; iii. if the pet is chipped and, in the case of a dog, registered; iv. whether the animal has regular flea treatment; v. whether the pet is house-trained if it is to be inside; vi. if the owner has pet insurance against damage (although this would be voluntary); vii. the reasons for obtaining the pet (e.g. security or emotional health and well being); viii. the length of time the tenant has owned the pet (has it become an integral member of the family); ix. if consent was not sought, the reasons why not.
The role of the Tribunal is to determine whether the pet restriction imposed by a tenancy agreement is reasonable in each case. This current case could reasonably be argued both ways and it has been after a week weighing up the pros and cons of the case that I have reached my decision.
I appreciate that the landlord is concerned that the premises is unsuitable to house a dog, being such small premises. In addition, the landlord believes that allowing dogs where there are 18 small units grouped together could cause problems. The landlord is also mindful of other tenants. The landlord does not want other tenants to be bothered by this tenant’s dog. These considerations by the landlord are very important.
On the one hand the Tribunal does not have evidence that the dog has caused a problem for any of the landlord’s other tenants. If there had been evidence of the dog causing a problem with other tenants, the decision would have been different. The landlord has not made the case that the dog is causing damage to the premises. The tenant is able to manage the dog in the small premises. The tenant walks the dog on a lead when it is outside. The dog is currently support for the tenant who is stressed by events that have been happening in her life.
I am satisfied on balance that at the present time the Tribunal should not order the tenant to remove her dog. However, the tenant should be very aware that any adverse change in circumstances regarding her dog could lead to the Tribunal ordering her to remove her dog. Merits and Justice
Section 86 of the Residential Tenancies Act 1986 sets out the manner in which the Tribunal must exercise its jurisdiction. The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
I am satisfied that the decision reached reflects the merits and justice of the case.

Order

The claim is dismissed. The Tribunal declares that the tenancy agreement’s “no pets” clause does not apply to the tenant’s dog. The tenant’s dog may live at the premises.

Reasons

Both parties attended the teleconference hearing.
The landlord has applied for permanent removal of the dog at the premises or failing that, termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

The landlord has made the application to the Tribunal because the tenant is keeping a dog at the premises and has not removed the dog despite the landlords 14 day notice for it to be removed from the property.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
The tenant does not dispute that she is keeping a dog at the premises. She said that she is looking after the dog for her friend who is incarcerated. The tenant does not dispute that she is in breach of her tenancy agreement. She did not request consent from the landlord to keep a dog before bringing the dog to the premises. The landlord stated that the tenant would not have been granted consent to keep the dog if she has requested it.
The tenant lives in a one bed unit on the third/top level of a block of 3 units that is in a building of 18 units. There is a staircase joining the 3 units in the block of 3 units. The dog is a medium sized dog. The landlord had a complaint when the tenant swept dog faeces off her balcony to the lower level. The tenant accepted that this should not have happened and has not repeated that behaviour. The landlord stated that a complaint had been received that the dog had lunged at a person. The landlord provide evidence in support of that claim however. The tenant responded that the dog does lunge forward but it is a lunge because the dog is wanting to be friendly, not aggressive.
Currently the Residential Tenancies Act 1986 (RTA) makes no specific reference to tenants having a right to keep pets at a property or a landlord not being able to include a “no pets” clause in a tenancy agreement. There have been differing decisions in the Tenancy Tribunal regarding a tenant’s right to keep pets and a landlord’s right to ban pets from premises.
The RTA provides that a tenant has the right to quiet enjoyment of the premises and that the landlord shall not cause or permit any interference with the reasonable comfort of the tenant in the use of the premises by the tenant (s.38(1)&(2)). (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) 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 Tribunal in Mullavarapu v Wilkie [2023] NZTT 4421925 reasoned: The word “quiet” is used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”: Kenny v Preen [1963] 1 QB 499. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
It could therefore be decided that a tenant should be able to keep the dog because she is entitled to undisturbed occupation. The dog should be able to stay in order that the tenant is able to treat the property as her own home.
On the other hand, the Tribunal in Schmid v Murray TT 181/91, 6 June 1991 said: If a landlord and a tenant who, being in possession of all of the relevant facts and capable of exercising their judgement rationally, decide expressly or impliedly to agree to the landlord breaching one of his/her obligations under the Act, I do not consider that the tenant can later assert that in terms of section 11(3) such a waiver is of no effect. Quite apart from that offending common sense and fairness, it is contrary to fundamental contractual principles of estoppel and I do not believe that the legislature intended this legislation to depart from such a basic principle as that. Having given informed consent to the landlord’s breach of the tenant’s right to quiet enjoyment, the tenant could not “shelter behind” s11(3) of the Act.
Essentially what this decision is saying is that if a landlord and tenant contract to exclude pets from tenancy premises, a tenant has agreed to waive his/her right to quiet enjoyment and can’t later claim that the waiver is of no effect. The Schmid decision gives room for the Tribunal to enforce “no pets” clauses despite a breach of a tenant’s right to quiet enjoyment.
The Tribunal in Sunshine Property Group Ltd [2023] NZTT 4573029, 4638049, 4595209, 4612043 set out factors to be considered whether a “no pets” clause should be permitted. Adjudicator Kee determined that a ‘blanket’ no pets policy is not automatically lawful and enforceable. He set out factors he believed could be considered in determining whether a pet should be able to be in a property, whether there was a no pets policy or not. These include: i. the size and type of animal; ii. whether the animal has caused any damage to the premises or disruption to the neighbourhood; iii. if the pet is chipped and, in the case of a dog, registered; iv. whether the animal has regular flea treatment; v. whether the pet is house-trained if it is to be inside; vi. if the owner has pet insurance against damage (although this would be voluntary); vii. the reasons for obtaining the pet (e.g. security or emotional health and well being); viii. the length of time the tenant has owned the pet (has it become an integral member of the family); ix. if consent was not sought, the reasons why not.
The role of the Tribunal is to determine whether the pet restriction imposed by a tenancy agreement is reasonable in each case. This current case could reasonably be argued both ways and it has been after a week weighing up the pros and cons of the case that I have reached my decision.
I appreciate that the landlord is concerned that the premises is unsuitable to house a dog, being such small premises. In addition, the landlord believes that allowing dogs where there are 18 small units grouped together could cause problems. The landlord is also mindful of other tenants. The landlord does not want other tenants to be bothered by this tenant’s dog. These considerations by the landlord are very important.
On the one hand the Tribunal does not have evidence that the dog has caused a problem for any of the landlord’s other tenants. If there had been evidence of the dog causing a problem with other tenants, the decision would have been different. The landlord has not made the case that the dog is causing damage to the premises. The tenant is able to manage the dog in the small premises. The tenant walks the dog on a lead when it is outside. The dog is currently support for the tenant who is stressed by events that have been happening in her life.
I am satisfied on balance that at the present time the Tribunal should not order the tenant to remove her dog. However, the tenant should be very aware that any adverse change in circumstances regarding her dog could lead to the Tribunal ordering her to remove her dog. Merits and Justice
Section 86 of the Residential Tenancies Act 1986 sets out the manner in which the Tribunal must exercise its jurisdiction. The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
I am satisfied that the decision reached reflects the merits and justice of the case.

Tenancy Tribunal case 5273261 — 14-day notice

At a glance

Tenancy Tribunal case 5273261 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions