What was Tenancy Tribunal case 5352944 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5352944?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5352944?

The primary dispute was State of repair. Related themes: Smoke alarms, Cleanliness, Healthy homes.

Where can I read the official tribunal order for case 5352944?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12785285-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5352944 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5352944?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5352944?

The primary dispute was State of repair. Related themes: Smoke alarms, Cleanliness, Healthy homes.

Where can I read the official tribunal order for case 5352944?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12785285-Tenancy_Tribunal_Order.pdf.

120C Oxford Terrace, Epuni, Lower Hutt 5011 Tenancy Tribunal Case 5352944 — State of repair

Tenantcheck Insights

Reasons

Both parties attended the hearing.

The landlord was represented by Ms Smith, a Senior Advisor Tribunal for Kāinga Ora and Mr Hartley-House, an Asset Manager for Kāinga Ora.

This dispute relates to a tenancy that commenced in January 2024 and is ongoing.

The tenancy premises is in Epuni, Lower Hutt.

The tenant is concerned about damage to the building, which he says appears to be earthquake damage and says the building is not structurally sound and he requests a structural engineer assess the premises.

The tenant wants the premises to be structurally sound. Relevant legal considerations

The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood.

The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy 1 , in practical terms this means that: ... “[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.”

The more serious the claims made the greater the evidential burden on the applicant will be. 2 The Law:

Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.

I have set out section 45(1) RTA in full below. 45Landlord’s responsibilities (1)The landlord shall— (a)provide the premises in a reasonable state of cleanliness; and 1 Kaipo v Clarke & McCarthy (DC) TT233/02 2 Z v Dental Complaints Assessment Committee [2008] NZSC 55. (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; and (ba)comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A; and (bb) comply with the healthy homes standards; and (bc) [Repealed] (bd)comply with all requirements in respect of contaminants imposed on the landlord by regulations made under section 138C(3)(c); and (c)comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and (emphasis added) (ca)if the premises do not have a reticulated water supply, provide adequate means for the collection and storage of water; and (d)compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i)the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii)the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so; and (e)take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.

Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work to reach compliance. 3 3 See section 78(1)(e) Residential Tenancies Act 1986.

If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. 4

A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. 5

Has the landlord failed to comply with their obligations?

The tenant says that there is a crack from the kitchen bench to the ceiling which appears to be earthquake damage and he is concerned that there are structural weaknesses in the building. He is concerned about the structural integrity of the building in the event of an earthquake.

The tenant provided two photographs of the kitchen, although neither are wide shots, therefore there is no context to the images. The photographs alone do not provide sufficient evidence of a need for a structural engineering report to assess the safety of the building.

Kāinga Ora say they have assessed the crack in the tenant’s kitchen, and it is superficial and that there is no evidence of structural issues with the building

The tenant said that Consentium, which was involved in the consent process for the building of the premises, was not independent of Kāinga Ora, therefore suggesting that they might not have undertaken their role adequately. The tenant was in effect suggesting that an independent structural assessment would be able to assess this. The tenant provided documentation that had been released to him by Kāinga Ora, although expert evidence was not provided to comment on the evidence submitted.

The tenant also said that the ground may have been unstable and unsuitable for a building and relied on the documentation provided to him by Kainga Ora to support that submission.

Kāinga Ora said Consentium is a nationally accredited and registered non- territorial Building Consent Authority (BCA) and is an independent division of 4 See sections 78(2) and 78(2AA) Residential Tenancies Act 1986. 5 See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986. Kāinga Ora. Kāinga Ora said Consentium is responsible for building compliance services such as consenting, inspections, and certification for state housing projects due to the volume of works being undertaken by Kāinga Ora. Kāinga Ora also said that they do not undertake the building of the premises, the building firm responsible for this build is independent of Kāinga Ora and Consentium.

Kāinga Ora’s position is that the works completed were in strict compliance with the engineers designs and all inspections were carried out as part of the consenting process. Crucially, the landlord has provided a Code Compliance Certificate dated 15 November 2023 (CCC).

Because the tenant did not provide expert evidence or photographs which would raise any concern about the foundations, the building assessments and consent process or the building currently, I consider the tenant has provided insufficient evidence to prove the claim.

I am not satisfied on the evidence that Consentium may have not ensured the building met all compliance standards or that the building may currently have foundation or structural issues that warrant further investigation.

The onus of proving that Kāinga Ora has breached an obligation is on the tenant. Because the tenant has not proven the claim, it is dismissed. Filing fee

The tenant has been unsuccessful with the claim; therefore, I decline to reimburse the filing fee. Suppression

Section 95A of the RTA relates to suppression orders. The relevant provisions state: (1)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.... ...(4) The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (5) An order under subsection (4) may be made subject to any conditions that the Tribunal considers appropriate.

Kāinga Ora did not seek name suppression.

The tenant applied for name suppression, however as he has been unsuccessful in the claim I decline to grant name suppression for the tenant.

Reasons

Both parties attended the hearing.

The landlord was represented by Ms Smith, a Senior Advisor Tribunal for Kāinga Ora and Mr Hartley-House, an Asset Manager for Kāinga Ora.

This dispute relates to a tenancy that commenced in January 2024 and is ongoing.

The tenancy premises is in Epuni, Lower Hutt.

The tenant wants the premises to be structurally sound. Relevant legal considerations

The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).

The more serious the claims made the greater the evidential burden on the applicant will be. 2 The Law:

Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.

Has the landlord failed to comply with their obligations?

Kāinga Ora say they have assessed the crack in the tenant’s kitchen, and it is superficial and that there is no evidence of structural issues with the building

The tenant also said that the ground may have been unstable and unsuitable for a building and relied on the documentation provided to him by Kainga Ora to support that submission.

The onus of proving that Kāinga Ora has breached an obligation is on the tenant. Because the tenant has not proven the claim, it is dismissed. Filing fee

The tenant has been unsuccessful with the claim; therefore, I decline to reimburse the filing fee. Suppression

Kāinga Ora did not seek name suppression.

The tenant applied for name suppression, however as he has been unsuccessful in the claim I decline to grant name suppression for the tenant.

Tenancy Tribunal case 5352944 — State of repair at 120C Oxford Terrace, Epuni, Lower Hutt 5011

At a glance

Tenancy Tribunal case 5352944 — State of repair at 120C Oxford Terrace, Epuni, Lower Hutt 5011

At a glance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions