What was the outcome of Tenancy Tribunal case 4505172?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4505172?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4505172?

The primary dispute was State of repair. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4505172?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9218340-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4505172?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4505172?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4505172?

The primary dispute was State of repair. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4505172?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9218340-Tenancy_Tribunal_Order.pdf.

Room 722, 124 Willis Street, Te Aro, Wellington 6011, St Tenancy Tribunal Case 4505172 — State of repair

Order

No suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

Both parties attended the hearing with Ms DeJong, the manager of the boarding house, representing the landlord.
The parties entered two boarding house tenancy agreements for room 523 and subsequently room 722 at the premises. It appears that the tenancy commenced on 31 January 2022 (with the starting year incorrectly written as 2021 on the tenancy agreement) and was terminated by the landlord giving a 28-day notice of termination which took effect on 13 February 2023.
The tenant seeks compensation and exemplary damages for various claims that may be summarised as follows: a. Failing to provide a room with adequate natural light; b. Failing to provide a room that complies with ventilation standards; c. Failing to maintain the property with the following problems: noisy water pipes; central heating not working; smelly rubbish in hallway; d. Breach of quiet enjoyment amounting to harassment and breach of human rights with the following problems: noisy neighbouring tenants; allegations of stalking, monitoring and surveillance and using surveillance techniques which caused injury both physically and emotionally; being excluded from a Christmas party event; e. Unlawful entry and theft of items from the tenant’s room and inadequate security to protect against this; f. Unlawful termination of the tenancy because it breached the landlord’s promise that the tenant could reside in the tenancy as long as she wished.
The onus is on the tenant to prove her claims on the balance of probabilities. Put another way she must persuade me that what she says is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not. I must consider all the evidence presented (including oral testimony) and weigh this evidence to decide what is more likely. Where the evidence is in dispute, the Tribunal will consider whether there is other corroborating evidence which strengthens the weight of the evidence given.

Has the landlord failed to provide a habitable room with adequate natural light?

Regulation 11(1) of the Housing Improvement Regulations 1947 provides that every habitable room shall be provided with 1 or more windows so situated in an external wall or walls that adequate light is admitted.
The tenant claims that the landlord is in breach of this obligation because although there was a window in the first room 523 which she occupied she says that it did not let in enough light. She says that she notified the landlord of the problem but could not say exactly when she did so.
Ms DeJong for the landlord noted that room 523 had a compliant window which let in light. However, when the tenant requested another room, they agreed to transfer her to room 722. She denies that the landlord has breached any obligation to provide a room with adequate light.
I find that there is insufficient evidence to establish that room 523 did not have adequate light in breach of their obligations. Even if I am wrong, the landlord accommodated the tenants request to be transferred to another room, which remedied the issue. For those reasons, the claim is dismissed.

Has the landlord breached the ventilation standard?

The tenant claims that the landlord has breached the landlord’s obligations under section 66I(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS ventilation standard because the window of her first room 523 did not open enough. However, there was no supporting evidence that the ventilation standard has not been met such as evidence from a suitably qualified expert and/or photos of the window.
All boarding houses must comply with the HHS by 1 July 2021.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances.
The landlord pointed out that the HHS compliance statement attached to the boarding house tenancy agreement states that the property complies with the HHS including the ventilation standard. The tenant was unable to provide sufficient evidence that the ventilation standard has been breached. For that reason, the claim must be dismissed.

Has the landlord failed to maintain the premises?

The tenant claims that the landlord failed to maintain the premises in several respects and says that she reported problems with noisy water pipes and tapping sounds inside her room; external water noise; the central heating in her room not working; and rubbish bins in the hallway not being emptied regularly so that they became overflowing and smelly. The tenant says she reported the problems to the front desk but did not document them in writing by, for example, text, email, letter or even a handwritten note. She was also unable to say exactly when she notified the landlord of the problems.
A landlord must ensure that the facilities of the premises are in a reasonable state of cleanliness and that the premises are in a reasonable state of repair. See sections 66I(1)(a) and (b) RTA
It is well settled that the landlord’s obligation under s66I is to investigate and repair a defect brought to their attention in a reasonable timeframe. As to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, the tenant has a statutory duty to advise of any defects under s66K(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Ms DeJong gave evidence that she was not aware of the tenant notifying the landlord of any of these complaints. Certainly, they were not documented by the tenant in any manner. She says that these issues have only been raised by the tenant after the tenancy ended. She also gave evidence that the central heating is checked annually and turned on from May to October. Each room has a fixed wall radiator that occupants can turn on and off as required. She also stated that each floor has a large rubbish bin which is emptied daily by staff, seven days/week including Public holidays. The landlord denies the tenant’s claims.
I find that there is insufficient evidence to prove that the tenant notified the landlord of the alleged cleaning and maintenance issues. For example, there are no texts, email messages, letters or handwritten notes from the tenant to the landlord to notify them of the problems. In the absence of sufficient evidence to prove that the landlord was notified of the issues, the landlord cannot be held liable for any failure to repair. Therefore, the claims must be dismissed. Is the landlord responsible for any breach of quiet enjoyment/harassment of the tenant in her use of the premises?
A landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises. This includes an obligation not to permit any such interference by another tenant of the boarding house. See section 66G(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. See section 66G(4) and Schedule 1A Residential Tenancies Act 1986.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". See MacDonald v Dodds, CIV-2009-019-001524, District Court Hamilton, 26 February 2010.
The tenant claims the landlord is responsible for harassment carried out by other tenants and/or the landlord. She believes that neighbouring tenants were intentionally noisy by talking loudly and pouring water loudly which she could hear when using her bathroom. She believes that other tenants were monitoring her movements, stalking her and following her in the lifts and stairwells. She is concerned that various means were being employed to keep her under surveillance. She says that the situation was like a war zone causing her harm both physically and emotionally and was a serious breach of her human rights.
I acknowledge that the tenant is genuinely concerned and disturbed by the events she described. However, there is insufficient evidence to prove the allegations. Ms DeJong says that other tenants made complaints about Ms Fan’s behaviour, and she produced two written statements from neighbouring tenants. They were not called as witnesses, and therefore, their statements carry limited weight. However, Ms Fan was unable to prove that she had complained to the landlord about the alleged harassment, and she was unable to provide other corroborating evidence such as witness statements from other tenants to support her claims.
In summary, I find that the claims are not proved on the balance of probabilities and must therefore be dismissed.
Ms Fan made other complaints that the landlord organised a Christmas party for residents that did not go ahead. She felt unhappy about this. However, this is not a breach of any obligation under the RTA for which the Tribunal could award any compensation or any other remedy. The tenant also claims that the landlord failed to manage the boarding house to reasonably prevent the spread of Covid- 19, believing it was transmitted to her after being in contact with other tenants in the communal kitchen. However, there is no evidence to establish any breach of the landlord’s obligations in that respect. Is the landlord responsible for unlawful entry/theft from the tenant’s room?
The tenant claims the landlord or someone else in the boarding house entered her room unlawfully and stole a music CD. The tenant claims that the landlord is responsible if another person has entered her room because the boarding house security system is inadequate. The tenant also says that an icepack belonging to her was stolen from the communal kitchen and she seeks redress from the landlord for this too.
A landlord must not enter the tenant’s room during the tenancy except with the tenant’s consent, in an emergency, for providing services in the room, or after giving the required notice. See section 66R RTA.
The tenant confirmed that she always locked her room. Ms DeJong says that the security system at the boarding house is robust with security cameras on every floor which are regularly monitored. When the tenant complained about a theft, she says that they checked the cameras and did not find evidence of anyone entering the room unlawfully. She understands that the tenant also reported the matter to the Police, but she does not know if they followed up on the complaint.
I find that there is insufficient evidence to prove that the landlord entered the tenant’s room unlawfully and took anything from the room. I am also satisfied that there is insufficient evidence to establish that someone else entered the room unlawfully to steal items. Even, if they did so, I am satisfied that the landlord has reasonable security practices such that I do not find the landlord liable for any failure. As for items in the communal kitchen, the landlord cannot possibly be responsible for monitoring belongings placed by different tenants in a communal space nor be held liable for items that may go missing in those circumstances. For these reasons, the claim must be dismissed.

Has the landlord terminated the tenancy unlawfully?

The tenant says that when she signed the second boarding house agreement for room 722, she was told by the person on the front desk that she could stay as long as she liked and could give 48 hours’ notice to end the tenancy. The landlord terminated the tenancy on 28 days’ notice under s66U(1)(d) RTA with effect on 13 February 2023. This section allows the landlord to terminate the tenancy on 28 days’ notice without giving a reason. The tenant says that this was in breach of the promise made that she could stay as long as she wished.
Clause 1 of the tenant’s copy of one of the tenancy agreements reads: “The tenancy commences on 31/01/2021 and is intended to last until 28/02/21 being a term of 28 days or more.” However, the end date of 28/02/21 has been crossed out and a handwritten notation says: “Open contract. Required 48 hours’ notice to vacate. 27-05-22”
Section 66C RTA requires every boarding house tenancy agreement to include a statement of whether the tenancy is intended to last for 28 days or more because this is one of the requirements for a boarding house agreement subject to Part 2A of the RTA. However, despite the intention, either party can terminate the agreement sooner or allow it to continue beyond the 28-day period. The various grounds for termination are contained in Part 2A RTA.
I find on the evidence that the tenancy agreement between the parties clearly provides that the end date of the tenancy is “open’. In other words, there is no definite end date. However, clause 10 of the general conditions of the tenancy agreement provides that either party may terminate the tenancy. The tenant may terminate on 48 hours’ notice. The notice which the landlord is required to give depends on the reason for termination. However, the landlord may terminate the agreement on 28 days’ notice for no reason. There is no evidence to support the tenant’s claim that the landlord agreed that she could stay at the premises for as long as she liked to the extent that the landlord would not be entitled to terminate the tenancy at all. The tenants right to remain at the premises indefinitely is subject to both parties rights to terminate. I also accept that the landlord would never agree to such a condition because a landlord must be able to terminate a tenancy, especially if there are grounds for doing so such as non-payment of rent or anti-social behaviour.
In summary, I find that the landlord did not agree to waive its rights to terminate the tenancy. Any indication that the tenancy could continue for as long as Ms Fan wished was subject to rights of termination and subject to both parties adhering to all other obligations set out in the tenancy agreement signed by the parties. Therefore, the landlord’s notice to terminate is not unlawful and the claim is dismissed.
As the tenant has not succeeded with her claims she is not entitled to suppression of her name and identifying details as requested not to reimbursement of the filing fee on the application.

Tenancy Tribunal case 4505172 — State of repair at Room 722, 124 Willis Street, Te Aro, Wellington 6011, St

At a glance

Tenancy Tribunal case 4505172 — State of repair at Room 722, 124 Willis Street, Te Aro, Wellington 6011, St

At a glance

Claims & awards

Order

Reasons

Has the landlord failed to provide a habitable room with adequate natural light?

Has the landlord breached the ventilation standard?

Has the landlord failed to maintain the premises?

Has the landlord terminated the tenancy unlawfully?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord failed to provide a habitable room with adequate natural light?

Has the landlord breached the ventilation standard?

Has the landlord failed to maintain the premises?

Has the landlord terminated the tenancy unlawfully?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions