What was Tenancy Tribunal case 5458590 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 5458590?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5458590?

The primary dispute was 14-day notice. Related themes: Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 5458590?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13470461-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5458590 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 5458590?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5458590?

The primary dispute was 14-day notice. Related themes: Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 5458590?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13470461-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5458590 — 14-day notice

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
The landlord application 5458590 is dismissed.
The Rent Shop Ltd T/A The Rent Shop Nelson Ltd As Agents For Brad & Marney Kelling must pay [The tenant/s] the filing fee of $28.00 immediately.
No other orders are made.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for a breach of the tenant’s obligations.
The tenants lodged a counterclaim seeking compensation and exemplary damages.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
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 adjudicated.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
In Heath v Wood (Wellington District Court, Minute No. 2, CIV-2009-085-040, 28 April 2009) it was emphasised the onus was on the applicant 'to attend the original hearing fully equipped to deal with the issues'. I note here this here as the lack of success for the landlord reflects an equal lack of supporting evidence should have been reasonably available.
There is a second tenant application under process. That pertains to a claim of retaliatory notice after a 90-day notice to terminate was recently served by the landlord. The tenants confirmed they seek the quashing of that notice, as well as exemplary damages. Background
This tenancy commenced 4 June 2024 and continues.
Apart from these claims relating to one dispute and the subject of this litigation, the tenancy appears to be operating very well with the landlord expressing satisfaction regarding the inspected condition to date. Rent is paid as due.
To this matter. Approximately 21 months ago (shortly after the tenancy commenced) the tenants relocated their spa pool to the external deck of the premises. The deck itself is of no height of significance, being near or at ground level, based on the photos provided.
In November 2025, the landlord served a breach notice regarding the spa pool. The crux of that notice was a concern that the spa pool was not safely secured to the required statutory standard. There remains an ongoing disagreement regarding the relevant statutory requirements but suffice to record that, based on the evidence presented to date, the tenants improved their spa pool cover so that it had a series of lockable clasps to restrain the cover when attached to the spa pool body. In doing that, it appears to meet the stated safety requirements for a spa pool under 5m², that is 760mm+ high, has non-climbable walls, and is secured by a compliant, lockable cover. This was not the case before the notice to remedy. I was told by the tenant the required enhancements were made by him in late 2025.
The landlord questioned when the remedy, established by photos, was made. It was curious that given the expressed safety concerns that no subsequent inspection or recollection from the landlord could confirm the alternative, being a continued failure.
There was a secondary reference in the notice to possible damage to the deck but that is considered an aside in the first notice as no specific remedy relating to potential damage was demanded. It stated, “Please also be aware that spa pools left on a deck can cause damage which you can be liable for.”
There appears to have been little, if any, follow up regarding the spa pool until an inspection and notice in February 2026. Landlord application for a termination order per s 56 RTA

Is the 20 February 2026 Notice to remedy grounds for termination?

A second notice to remedy was served on 20 February 2026. That notice cited structural concerns and claimed the tenants were in breach of their responsibilities. The notice is copied below: (Sections highlighted in bold have been made by me intentionally for ease of reference): From: Georgina Lupton (Georgina) To: [tenants] Date: 20/02/2026 5:59:06 PM Subject: February Routine Inspection - RE: Spa Pool at [tenancy address] Good afternoon, Thank you for allowing us access to the property this afternoon to conduct the routine inspection. We would like to acknowledge and sincerely thank you for the consistently high standard at which you maintain the property. It is evident that you take considerable care and pride in your home, and this is genuinely appreciated. As duly authorised agents for the property owner, we, The Rent Shop Ltd, wish to bring to your attention that you are in breach of our Tenancy Agreement and Residential Tenancy Act (1986) as follows: The spa pool that has been installed on the exterior deck during the course of your tenancy. As you will recall, a 14-day breach notice was initially issued regarding the unauthorised placement of the spa pool. During today’s inspection, we noted that the spa pool remains in situ. We also observed indications of potential modification works having been undertaken to facilitate its placement, which has also been completed without prior written consent from the landlord or confirmation that the appropriate approvals had been obtained. For clarity, no request for permission was received through the proper channels from you before installing the spa pool. This is particularly concerning given that structural suitability and compliance requirements must be assessed prior to any such installation. As such, is also stated within your signed tenancy agreement whereby we request that permission is sought, before any changes are made to a rental property. The landlord has confirmed that when the deck was originally constructed, professional advice was sought regarding the potential installation of a spa pool for the landlords own personal use. At that time, they were advised that the deck was not structurally designed to support the substantial weight of a spa pool and therefore, they did not move ahead with installing a spa pool. By way of reference, a standard 4–6 person spa pool typically weighs approximately 300–400kg when empty and between 1,500–2,000kg when filled with water and occupants. Larger models can exceed 2 tonnes. The exterior deck at this property is not certified to safely withstand such loads. In addition, under New Zealand law, residential pools - including portable and spa pools - must comply with the Building Act 2004 and Building (Pools) Amendment Act 2016. Any pool capable of holding more than 400mm of water must have compliant physical barriers restricting unsupervised access by children under five years of age, along with other guidelines within the act surrounding compliance. At present, the spa pool does not meet compliance requirements. There is no evidence of a compliant lockable cover, approved barrier system, alarm protection, or council-approved fencing in place. This presents a significant health and safety risk and potential liability concern. Having reviewed the matter, the landlord has formally instructed us that they wish for the spa pool to be removed from the deck and from the property entirely. Accordingly, you are required to arrange for the full removal of the spa pool and any associated modifications immediately this is for your safety, along with others and the safety of the property in line with the law. The spa pool now needs to be removed from the property entirely, no later than 04/03/2026 (14 days from the date of this email, plus 1 day for service) and ensure its removal from the premises is completed by that date. Please be advised that if there is any damage to the deck as a result of having the spa pool in situ, the cost to rectify this will be on-charged to you. Failure to remedy this breach will result in an application being made to the Tenancy Tribunal for an order that the breach be remedied and/or your tenancy ended. We trust that this matter will be amicably resolved prior to this action. Should you require clarification regarding your obligations, we strongly recommend that you contact Tenancy Services or the local council to ensure full understanding of your rights and your responsibilities surrounding this matter. Thank you for your co-operation.
The email shows the date and time as already discussed. I asked the landlord for the supporting evidence from that inspection that there was no “compliant lockable cover” at that time. The tenant submitted the photos showing compliance were taken in later 2025, after the first notice but well before the second. No photos had been provided to counter the tenant evidence and claim regarding timing of compliance.
The required remediation by date of 4 March 2026 was earlier than the minimum of 14 days with service allowed for. Section 56 states: 56 Termination for non-payment of rent and other breaches On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b) in the case of a breach capable of remedy,— (i) the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii) the other party failed to remedy the default within the required period; and (c) that 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 first challenge for the notice to be deemed effective and grounds for termination under s 56 RTA is the invalid date for remedy.
I suggest more importantly, the question was, on the basis of the tenant already meeting compliance requirements, had the tenant breached any provision of the tenancy agreement or the RTA.
I asked the landlord to confirm the statutory basis for the claimed breach and she confirmed it as s 42 RTA. This section requires the tenant shall not affix any fixture to the premises, or make any renovation, alteration, or addition of or to the premises, except in accordance with the tenancy agreement; or with the prior written consent of the landlord
Discussion ensued regarding the claim that the spa pool was a fixture (with regard to any claimed alteration of the premises, the spa pool sits on marine carpet and is a plugged spa pool, into an existing outdoor electricity socket. I was told by the tenant he plugged it in himself and no modification to the existing electrical supply or circuits were required (some larger spa pools required a higher amperage outlet and plug to support the draw while heating).
Therefore, as best explained by the tenant, the spa pool is a freestanding spa pool on the deck, using a plug in an existing socket for electricity.
The landlord notice claimed, “During today’s inspection, we noted that the spa pool remains in situ. We also observed indications of potential modification works having been undertaken to facilitate its placement”, and later, “At present, the spa pool does not meet compliance requirements. There is no evidence of a compliant lockable cover, approved barrier system, alarm protection, or council-approved fencing in place. This presents a significant health and safety risk and potential liability concern.”
The onus is with the landlord and photographic evidence of any claimed “modifications” or “non-compliance” should have been easily observed and recorded given the visit was a routine inspection with photographic recording a typical exercise. This evidential limitation was compounded by the tenants counter photographic evidence of compliance.
Given no evidence of any “renovation, alteration, or addition of or to the premises” I had to consider if the spa pool was a fixture such that s 42 RTA would “be in play”.

So is the spa pool a fixture or a chattel?

A spa pool can be considered a fixture if it meets the legal tests for what constitutes a fixture under New Zealand law. The key considerations are the degree of annexation (how permanently it is attached to the land) and the object of annexation (the intention behind attaching it—whether it is meant to be a permanent improvement or just for temporary use).
If a spa pool is installed in a way that makes it a permanent part of the property that a tenant or owner would expect to be present for the full use of the property, it may likely to be deemed a fixture.
In Tasman District Council v Schaeffner, the Environment Court emphasised the need to consider the degree and object of annexation when distinguishing between a fixture and a chattel, particularly in the context of structures like tiny homes and, by analogy, spa pools.
A spa pool may be considered a fixture if it is sufficiently annexed to the property and intended to be a permanent improvement, rather than a temporary or easily removable item. If a spa pool is simply placed on the ground and easily moved, it may be considered a chattel rather than a fixture. The answer depends on the factual circumstances of how the spa pool is installed and used.
Given the evidence in front of me, the need for mechanical assistance to move the spa pool into place notwithstanding, I consider the spa pool is best categorised as a chattel of the tenant that will be removed when the tenancy ends, or before if they so choose.
Given that, I do not consider the tenant is in breach of any specific provision in the tenancy agreement (silent) nor the RTA.

Should the tenancy be terminated?

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.
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The tenants have not breached a term of their tenancy so the notice, as well as being deficient vis-à-vis the minimum remedy period, has no basis to find the tenant has failed to remedy.
Even if I am wrong, I would have needed to consider if it would be inequitable to refuse to terminate the tenancy.
I understand the spa pool has been in place for some 21 months. It is not always fill. The tenants estimated 50% of the time it would have been filled. That would mean at least 10 months of a filled spa pool (or maximum weight) in-situ.
That is an extended period from near commencement where, prior to the November 2025, no concern or notice from the landlord regarding the suitability or safety of the spa pool appears. That first notice was rightly focused on safety and compliance. I consider any potential impact of the weight or placement of the spa pool was not raised as an issue until February 2026.
There is no evidence of any impact on the deck from the spa pool. The photos appear to show the deck maintain a straight effect with no obvious drop on the loaded part of the deck.
I received a letter from the builder of the deck who retrospectively stated the deck was not constructed to withstand such a load. He acknowledged he has not inspected the deck subsequently. This letter is not considered a report with informed detail such that I consider it proven the deck is under threat. It contains to evidence of any issue from the spa pool. In the photos provided there is no obvious level drop in the weighted section of deck.
I also heard from Ms Lupton that the owners had advised her that they had considered a spa pool on the deck when resident and they not done so due to such advice. If so, there was no evidence of this and I questioned why the owners had not turned their mind to this problem quicker, given their own experience. The spa must have been hiding in plain sight for numerous routine inspections; such reports being confirmed as sent to the owners as is usual practise. There were a number of inconsistencies in the submissions of Ms Lupton that are of an uncertain origin as some involved recounted communication with the owners.
For reference, a photo of the spa pool in-situ is below: Figure 1: spa pool as located
Given the inconsistencies and lack of sufficient evidence to support any proven concerns regarding the deck’s ability to hold the spa pool I would have considered it inequitable to terminate the tenancy, if such a consideration was required. The tenant application
The tenants sought compensation of $2,700.00 and exemplary damages. Unlawful entry
[The tenant/s] claim the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord asserted a right of entry per s 48(2)(c) of the RTA on 6 March 2026. This was based on the second breach notice served after 5pm on Friday 20 February 2026. That notice incorrectly stated the minimum 14-day period end date. It should have stated it as 9 March 2026 as the notice was served after 5pm. The landlord claims the email was sent ay 4:59pm and had a hardcopy of this. However, the copy submitted by the landlord, and confirmed by the tenant as received, states the sent date and time as 5:59pm. I have relied on the copy as provided.
The tenant responded to the landlord, rightly, advising the remedy period had not ended as at the date of the intended inspection, and the landlord should not conduct any inspection.
The landlord did not reply to the tenant response but suffice to note that no inspection took place during the remedy period. If it had of, I consider it would have been in breach of s 48 RTA and an unlawful act by the landlord.
There was no entry and therefore no breach by the landlord of s 48(2)(c) RTA. This claim is dismissed although the validity of the notice and the subsequent need for the tenants to consider, respond, and to assert their rights is a factor considered below. Quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
[The tenant/s] claim the landlord has harassed them.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in this case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder Palmerston North TT 12/87, 16 March 1987 the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
The landlord has persisted with an insistence of removal that had not been proven as a right to pursue. However, it would be stretch to see such actions as being harassment. I do not find they have committed an unlawful act. Compensation
The compensation as sought by the tenants was $2,700.00 based on 27 hours for: Time and effort — responding to defective notices, researching compliance, preparing formal notice, obtaining evidence, and filing cross-application
Section 102(1) RTA states, regarding costs, the Tribunal shall have no power to award costs to or against any party to proceedings before it, with an exception as below.
The Tribunal can order a party to pay reasonable costs to the other party where: the Tribunal believes the claim is frivolous or vexatious, any of the parties are represented by a lawyer, the claim should have been settled at mediation, or the applicant has failed to attend the hearing without reasonable excuse. See section 102(2),(3)(b) Residential Tenancies Act 1986.
I do not consider a number of the tasks subject to the claim for compensation can be awarded given the limited grounds for costs to be awarded, beyond the filing fee.
I then turned my mind as to did the landlord interfere with the tenants’ right to quiet enjoyment in its pursuit of this dispute and application for termination?
Given the lack of landlord success, and unsubstantiated claims, there would appear to be grounds for such consideration.
However, when considering claims, the Tribunal must also consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
While I have sympathy with the tenants need to later respond to what have been determined invalid claims, I am also mindful that until the first notice raised safety issues, the spa pool was unilaterally placed by the tenants without any approval or agreement from the landlord. It remained there in a non-compliant state until remedied later in 2025, after the landlord’s first notice. The notice may have incorrectly referenced statutory obligations but the need to address concerns regarding the sap pool safety and compliance was the thrust of the message and that was received and resolved. Without that notice, I do not consider the later improvement by the tenants would have been made.
Given that earlier compliance failure, and the overall circumstances, I decline to make any specific order for any compensation in favour of the tenants. Filing fee
However, because the tenants have substantially succeeded overall with their response and grounds for their application, I have reimbursed their filing fee.
The landlord is to carry its own cost of filing. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, 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.
Both parties requested suppression in their application. As it has been substantially successful in across both applications, suppression of tenant details is ordered.
The lack of landlord success means there is no suppression as of right and I do not consider any special circumstances exist to merit me exercising my initiative to do so in the alternative.

Tenancy Tribunal case 5458590 — 14-day notice

At a glance

Claims & awards

Tenancy Tribunal case 5458590 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Is the 20 February 2026 Notice to remedy grounds for termination?

So is the spa pool a fixture or a chattel?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Is the 20 February 2026 Notice to remedy grounds for termination?

So is the spa pool a fixture or a chattel?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions