How much money was awarded in case 4543869?

Isions Of The Residential Tenancies…: $20.44 awarded to landlord

Where can I read the official tribunal order for case 4543869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8975180-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 4543869?

Isions Of The Residential Tenancies…: $20.44 awarded to landlord

Where can I read the official tribunal order for case 4543869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8975180-Tenancy_Tribunal_Order.pdf.

Unit 4, 243 Rawhiti Road, Rawhiti, RD 4, Russell 0184, Tenancy Tribunal Case 4543869 — Leaks

Q: What was the outcome of Tenancy Tribunal case 4543869?

The tribunal order states: No application for suppression has been made in this case and no suppression

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Order

Claims and awards in Tenancy Tribunal application 4543869. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
isions of the Residential Tenancies Act 1986 and is unenforceable against the tenant. 4. The landlord must reimburse the	$20.44		isions of the Residential Tenancies Act 1986 and is unenforceable against the tenant. 4. The landlord must reimburse the

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.

The Tribunal declares that Clause 6 in the document which outlines additional terms of the Tenancy Agreement is inconsistent with the provisions of the Residential Tenancies Act 1986 and is unenforceable against the tenant.

The Tribunal declares that Clause 8 in the document which outlines additional terms of the Tenancy Agreement is inconsistent with the provisions of the Residential Tenancies Act 1986 and is unenforceable against the tenant.

The landlord must reimburse the filing fee of $20.44 to the tenant.

Reasons

Both parties attended the hearing. Puti Corbett was supported by Bronwyn Brown and James Hemara. Robert Clarke, Glenys Clarke, Hemi Witehira and Charles Sherman attended as Trustees and Louise Clarke who is the secretary for the Trust also attended and spoke on behalf of the trustee landlord.

As a preliminary matter, the tenant challenged the status of Charles Sherman as a trustee. She said that he has not been registered as a trustee through the Māori Land Court. She provided a printout of the current record of trustees held by that Court.

The landlord agreed that the addition of Mr Sherman as trustee had not been registered through the Court however submitted that the process through the Court can take some time, and that his nomination as Trustee had been done in accordance with their Charter. She indicated that registration was merely a formality. She said Mr Sherman has been voted in as a trustee in 2021.

When queried, the landlord acknowledged that they had not yet applied to the Māori Land Court to register Mr Sherman as a trustee.

Although it is not in my view material to the outcome in these proceedings, I have removed Mr Sherman’s name from the intituling of this order. I do not consider that he should be properly recorded as a trustee until that has been approved by the Māori Land Court. I do not agree that registration is merely a formality; the Court’s processes are an important oversight to ensure that the interests of all Māori landowners are property protected. Background & Jurisdiction

The property concerned is situation on Māori land. The landlord trustees have been appointed by the Māori Land Court. There are five responsible trustees who are named as landlord in this application.

The units in question are located on Kaingahoa Marae. There are five units overlooking the main marae area which were erected as “kaumatua units”. That is, they were specifically erected to provide housing for kaumatua.

The five units each have their own electricity meter and deal with their own power costs. Water (including wastewater) is not separately measured for each unit; indeed, the water is shared not only between the units but also with all users of the wider marae.

This can include whānau when there are tangihanga or hui or other whānau events. It can also include campers who erect tents on site or bring caravans. I am told that there are certain periods of the year when camping is restricted to whānau only. At other times members of the public can also use the marae for camping. There is a cost for camping and campers share use of the wharekai, wharepaku and any other common facilities.

The parties entered into a standard form tenancy agreement in November 2019. The tenancy commenced on 1 December 2019 and remains current.

While sections 5-7 of the Residential Tenancies Act 1986 (“the Act”) set out a series of situations in which the Act does not apply, section 8 provides that nothing in those sections shall prevent the parties to a tenancy that would otherwise be excluded from the Act from agreeing in writing that all or any of the provisions of the Act shall apply in respect of the tenancy.

The parties in this case signed a standard form agreement in which they agreed that a formal tenancy was in place and that they intended for the Residential Tenancies Act to apply.

At the hearing, both parties agreed that was the intention.

On this basis I am satisfied that the Tribunal has jurisdiction to hear the claims. Tenant’s Claims

The tenant in this case does not seek any monetary order. Rather, she seeks a declaration as to whether two clauses of the Tenancy Agreement are valid and enforceable.

It was clear reading thought the submissions of both parties and at the hearing that there have been disagreements between the parties over recent times over a variety of issues.

That includes disagreements about the governance of the Trust (including who should be trustees) as well as issues around use of greywater and the significant infrastructure investment that is likely to be required for the marae as a whole to deal with future resourcing of this important iwi asset.

However, the tenant has not brought claims in relation to lack of maintenance or infrastructure issues, nor of trustee governance. Indeed, she accepted that while there is a smell that is unpleasant, she knows that there will be a significant investment required to remediate the issue.

Moreover, I do not have power to adjudicate disputes that relate to governance issues.

I therefore confine my decision to the issues over which I do have power to adjudicate.

Section 11 of the Act provides that where any provision of a tenancy agreement is inconsistent with the provisions of the Act, that provision shall be of no effect. While landlords may voluntarily waive their rights under the Act, tenants may not do so.

Section 78(1)(a) of the Act provides that the Tribunal may make an order in the nature of a declaration as to the status of any agreement or purported agreement.

The tenant disputes two clauses which are attached in a separate document but said to form additional terms of the Tenancy Agreement. In particular, clauses 6 and 8. Clause 6

Clause 6 reads as follows. We are providing residential homes and are not a health service therefore tenants should be in good health or an alternative support contact will need to be named (see attached).

The attached document that is referred to advises that tenants must read and agree to certain conditions.

The first, and the one to which the tenant objects most strongly, states: ...you must disclose the severity of your health conditions...

The tenant says that Clause 6 amounts to discrimination against older people. She further points out that the entire purpose of the units are “kaumatua units” which are by definition for older folk.

Section 12 of the Act prohibits discrimination “in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1993”.

Section 21(1) of the Human Rights Act 1993 in turn outlines the prohibited grounds of discrimination under that Act. Both age and disability are listed as prohibited grounds of discrimination.

The landlord says that in the years prior to the tenant moving in they had to deal with serious health issues in relation to two previous tenants whose families did not take responsibility in providing the care that they needed. The landlord says that as a result they agreed that Clause 6 should be in all tenancy agreements moving forward.

The landlord says that this was only in an attempt to ensure that all their valued tenants get the care and attention that they need and was designed to protect and serve them.

I accept that the introduction of Clause 6 was well intentioned.

However, I find that it is inconsistent with the Act for two reasons.

First, the document requires a tenant, or prospective tenant, to disclose private health information. There is no legal basis on which a landlord can demand to know a tenant’s health information.

I acknowledge that the landlord in this case feels a sense of obligation towards its tenants that goes beyond a strict landlord-tenant relationship, however that does not mean that the landlord may act outside the bounds of the Act.

There is nothing to stop the trustees, acting in their broader capacity as kaitiaki of the land and people, simply asking for this information so that they may provide any assistance. However, the trustees may not, in their capacity as landlord, require tenants to provide this information if they do not wish to do so.

Secondly, the document implies that, depending on the nature or severity of any illness disclosed, a prospective tenant may not be granted a tenancy, or an existing tenant will be expected to end their tenancy or pay additional rent ($50 per week) for a caregiver to reside with them.

I do not accept the tenant’s claim that it is discriminatory on the basis of age. As the tenant points out the units were specifically built for kaumatua so there is no suggestion that the landlord would instead rent to a younger person.

However, it does in my view amount to discrimination on the basis of disability (which includes physical illness).

Accordingly, the Tribunal declares that Clause 6 is inconsistent with the Act and is therefore not enforceable. Clause 8

Clause 8 reads as follows. If you have whanau staying on a regular basis who are not your partner or caregiver they will be charged a daily rate after a 5 day grace period is exhausted. This is because there is huge pressure put out our infrastructure and the costs are increased when there are more than the normal amount of people staying in the units.

The tenant says that Clause 8 is an unfair term, because it is applied in an ad hoc manner, and that other tenants have people stay without paying this extra fee.

She also says that the clause amounts to an interference with her quiet enjoyment because she feels obligated to tell the landlord if people are staying and has led her to feel fear of being evicted if she does not.

As an example, she said that after she had surgery for cancer in 2022, she needed some assistance from whānau to take care of her. She said that due to this clause she felt obligated to let the landlord know they were staying, and she paid extra rent while they were there. She said that she was worried about being evicted.

The landlord says that for many years trustees have had to deal with tenants who abused the units by having extra people stay with them for extended periods of time which put a lot of pressure on drainage and plumbing infrastructure.

The landlord says that the clause was added in an attempt to deal with this issue, and that it was clearly explained to the tenants at a meeting in in 2019. They say the tenant raised no objection.

A tenancy agreement may specific the maximum number of persons who may ordinarily reside in a tenancy. A tenant has a consequent obligation under section 40(3) of the Act to ensure that no more than the specified number may ordinarily reside at the premises.

However, in this case, the tenancy agreement is silent as to the maximum number of persons who may reside there.

In addition, the focus of this section of the Act is on persons who “ordinarily reside” at the premises, not on a tenant’s ability to have visitors.

In this case, clause 8 purports to give the landlord power to charge additional rent for visitors if their stay exceeds 5 days.

There is no legal basis on which a landlord can demand additional rent for visitors. The rent payable for a tenancy is the amount agreed between the parties at the commencement of the tenancy, or any lawfully imposed rent increases. Further, rent cannot be increased other than in accordance with section 24 of the Act.

On that basis alone, the clause is not consistent with the Act and is thus unenforceable.

For completeness, I add that there was insufficient evidence regarding the tenant’s claim that this clause has been applied in an ad hoc manner.

I also accept that this clause could amount to a breach of quiet enjoyment. A tenant is entitled to “reasonable peace, comfort, or privacy... in the use of the premises by the tenant”. This extends to having visitors as she sees fit without interference by the landlord. Final Remarks

As I reminded the parties at the hearing, this is a legal decision and is not and should not be taken to be a reflection of the moral worth or character of any individual. There was nothing before me that suggested anyone had acted in bad faith.

I acknowledge that as trustees of Māori land the landlord here has a sense of greater social obligation than might be the case for most other landlords. Nothing I have said here should be taken to suggest that those are not legitimate concerns for the trustees.

This decision however is a reminder that when the trustees are “wearing their landlord hat” they must be careful to comply with all the provisions of the Act. When wearing their wider trustees’ hat then of course there is greater scope to deal more holistically with caring for whānau.

Because Puti Pare Corbett has wholly succeeded with the claim I must reimburse the filing fee.

Finally, I sincerely apologise for the delay in issuing this decision. J R Smith 15 July 2023

Order

Claims and awards in Tenancy Tribunal application 4543869. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
isions of the Residential Tenancies Act 1986 and is unenforceable against the tenant. 4. The landlord must reimburse the	$20.44		isions of the Residential Tenancies Act 1986 and is unenforceable against the tenant. 4. The landlord must reimburse the