What was the outcome of Tenancy Tribunal case 4585630?

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

How much money was awarded in case 4585630?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4585630?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Healthy homes, Property damage, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4585630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9357448-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4585630?

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

How much money was awarded in case 4585630?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4585630?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Healthy homes, Property damage, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4585630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9357448-Tenancy_Tribunal_Order.pdf.

Unit1, 164 Maunu Road, Woodhill, Whangarei 0110 Tenancy Tribunal Case 4585630 — 14-day notice

Order

No suppression orders apply around publication of this decision.
By consent, the tenancy of Neil John Walker at Unit 1, 164 Maunu Road, Woodhill, Whangarei 0110 is terminated, and possession is granted to Wendy McCumber, at 11.59pm on 11 September 2023.
All other claims are dismissed.

Reasons

Background

The tenancy began on 3 May 2021.
The tenant’s first application raised issues relating to leaks, healthy homes, and late lodgment of the bond.
The landlord’s cross application raises issues relating to cleanliness, damage, access to the property, and termination.
On 11 July 2023, the landlord issued a 63-day notice to terminate the tenancy.
The same day, the tenant filed a further application seeking a declaration that the notice is a retaliatory notice, and raising issues relating to breach of quiet enjoyment.
The three applications were heard at the Whangarei Court on 30 August 2023. Both parties attended the hearing. Landlord application Damage, cleaning, etc
Ms McCumber carried out an inspection in May 2023 and was dissatisfied with the condition of the premises.
Ms McCumber issued a 14-day breach notice on 15 May 2023, stating that the premises were not reasonably clean and tidy, the gardens were overgrown, and there was damage to walls.
Ms McCumber submitted that she carried out a re-inspection two weeks later, at the end of the notice period, but Mr Walker denied that there was any such re- inspection, and there is little evidence to show that a re-inspection was carried out.
The landlord’s application (filed on 31 May 2023) stated that she sought compensation for cleaning and repairs, but noted: The amount is unknown at this time. I do not know what damages have been repaired or cleaning done since serving the 14 day notice.
At the moment there is no monetary claim for cleaning or repairs.
The tenancy will end on 11 September 2023.
At the end of the tenancy, tenants must: a. Leave the premises reasonably clean and tidy; and b. Remove all rubbish; and c. Return all keys and security devices; and d. Leave behind the landlord’s chattels; and e. Not leave any unrepaired damage.
Ms McCumber may bring another application seeking compensation if any of those duties are not met. Termination
Periodic tenancies can be terminated by notice, or by a termination order from the Tribunal.
Landlords can only terminate a tenancy by notice in certain circumstances 1 . 1 Section 51 Residential Tenancies Act 1986 (RTA)
Mr McCumber submitted that she sought termination of the tenancy on the grounds that extensive repair work was necessary due to the damage caused by Mr Walker.
At the hearing, Ms McCumber maintained that she had given Mr Walker a 90- day notice on that basis, and she wanted the Tribunal to uphold that notice. Ms McCumber was not able to provide me with a copy of that notice.
In fact, Ms McCumber did not issue a 90-day notice on the grounds that extensive repairs were necessary. She issued a 63-day notice on the grounds that she required the premises were as her principal place of residence.
Mr Walker disputed the validity of that notice, but he made preparations to vacate the property on 11 September.
At the hearing, Mr Walker stated that he will be ready to vacate on 11 September, and he wants to keep that termination date.
For the reasons given below, it is my view that the landlord’s termination notice is not valid.
However, given that both parties want the tenancy to terminate, it is appropriate to make an order formalising the end of the tenancy on 11 September. Access
There have been issues between the landlord and tenant about access to the property for the landlord and / or tradespeople.
Most of those issues were created by confusion about the rights and obligations of landlords and tenants in respect of entry onto (or into) the premises. Given that neither party is seeking any remedies in respect of this issue, I will not traverse those issues in this decision or make any findings.
For the remaining few days of this tenancy, the ‘normal rules’ apply, the essence of which is that: a. The landlord may only enter the premises for certain specific purposes, such as carrying out an inspection or carrying out necessary repairs. b. The landlord can enter at any time with the tenant’s consent, freely given immediately before entry. c. The landlord can enter without requiring consent, provided that they give notice as required by the Residential Tenancies Act 1986. d. The landlord does not require permission or consent to go to the exterior of the premises, but it is sensible (and polite) for the landlord to let the tenant know if they are coming to the property even if they don’t intend to go inside.
More information is available on the Tenancy Services website. Tenant application Bond
Ms McCumber received a bond of $1,850.00 at the beginning of the tenancy.
Landlords are required the lodge the bond with the Bond Centre within 23 working days of receipt 2 .
A breach of this duty and the Tribunal can exemplary damages of up to $1,500.00.
In this instance it is not disputed that the bond was not lodged within 23 working days.
Ms McCumber submitted that she could not lodge the bond with the Bond Centre because of a complicated issue involving a bond paid to her by WINZ, not long before the start of Mr Walker’s tenancy, on behalf of a prospective tenant who eventually decided to not proceed with the tenancy.
I accept Ms McCumber’s explanation of the reasons for the delay in lodging Mr Walker’s bond.
I accept that Ms McCumber reasonably acted on advice that she received from WINZ, and that she lodged Mr Walker’s bond as soon as she understood that she was able to.
Exemplary damages are punitive. They are intended to punish and deter intentional breaches of a legal duty.
It would not be appropriate to award exemplary damages in this instance. Leaks / healthy homes
The healthy homes obligations in respect of heating and moisture ingress apply to all new tenancies entered into after 1 July 2021. They will apply to every tenancy, irrespective of its commencement date, from 1 July 2025.
This tenancy began in May 2021. Therefore, the healthy homes obligations in respect of heating and moisture do not apply to this tenancy.
In November 2022 there was water ingress into the corner of the lounge during very heavy rainfall.
Ms McCumber involved her insurer. The affected area was dried out. 2 Section 19(1)(b) RTA
There was no evidence of any roof leaks at that time. The advice given to Ms McCumber was that the water had tracked into the house from the gutters due to capillary action. The volume of rainfall was such that the gutters were full and overflowing.
In May 2023 the leak recurred in the same area during another very heavy rainfall event.
Ms McCumber involved her insurers again.
Again, Ms McCumber was advised that the water ingress was due to capillary action.
At Ms McCumber’s insistence, further investigation was carried out by the insurance assessor.
That investigation has recently shown that there is an issue with the roof that may necessitate substantial repairs or possibly replacement of the roof. That issue is in addition to a proven problem with the gutters, which is that there is insufficient fall.
The leaks in November 2022 and May 2023 seem to be a consequence of both the gutter and roof issues. The gutter issue is relatively straightforward to remedy – the gutters will be removed and re-attached to allow for sufficient fall, and another downpipe will be added. The roof issue may require large scale and costly work, but investigation of this issue is still in its early stages.
The guttering problem was aggravated by the fact that there is a large oak tree on the neighbouring property which drops leaves onto this property. Ms McCumber made enquiries about removing the oak tree, without success.
Mr Walker and Ms McCumber disagree about who took responsibility for clearing the gutters. Ms McCumber submitted that at the beginning of the tenancy she told Mr Walker that they would need to be cleared regularly, particularly in autumn, and that she would come around and do this. Mr Walker then told her that he liked his privacy, and he would be happy to clear the gutters himself. Mr Walker disputed this, and submitted that he understood that Ms McCumber would clear the gutters regularly, and she failed to do so.
The tenancy agreement has several handwritten terms including this: Property to be maintained by tenant, i.e. garden, lawn, trees, driveway, gutterings to be kept clear of leaves
This wording in the agreement supports Ms McCumber’s recollection of the arrangement with regards to clearing the gutters.
Landlords must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises 3 .
I am satisfied that Ms McCumber took prompt and appropriate action in response to the incidents in November 2022 and May 2023.
The information about the roof leak has only come to light recently, and then only due to Ms McCumber’s persistence.
The incidents in November 2022 and May 2023 caused some loss of amenity for the tenant, but not to such an extent and for such a prolonged period that an award of compensation for loss of amenity would be justified. Retaliatory notice
As noted above, Ms McCumber issued a notice of termination on 11 July 2023.
The grounds for termination stated in the notice is that the landlord requires the premises as a principal place of residence.
The actual reason for termination was that (according to Ms McCumber) extensive repairs were necessary.
Ms McCumber submitted that she used the “principal place of residence” notice because she intended to move into the premises herself for “a month or two” whilst the repairs were carried out.
Mr Walker submitted that the notice was retaliatory.
The Tenancy Tribunal may declare a notice of termination to be retaliatory if the Tribunal is satisfied that: In giving the notice the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority or remedy conferred on the tenant by the tenancy agreement or by this or any other Act 4
In this instance, I do not think that in giving the notice Ms McCumber was motivated by Mr Walker exercising a legal right or power.
The notice was not retaliatory, but it was (with due respect to Ms McCumber), wrong-headed.
As at 11 July, it was not obvious that there was damage to the premises that required repair work so extensive that it could not reasonably be done with the tenant in situ. 3 Section 45(1)(b) RTA 4 Section 54 RTA
Even if there was, Ms McCumber failed to give notice on that basis. She gave notice on the basis that she required the premises as her principal place of residence, which is certainly not the case.
It is an unlawful act for a landlord to give notice of termination “knowing that they are not entitled, under this Act, to give the notice” 5 . Exemplary damages of up to $6,500.00 can apply to this unlawful act.
I accept that Ms McCumber did not know that she was not entitled to give notice on the grounds that she did, and therefore I will not make an award of exemplary damages in this instance.
The discovery of the roof leak, whilst unfortunate for Ms McCumber in many respects, has coincidentally provided legitimacy to her underlying reason for terminating the tenancy. It seems that significant repairs are now necessary, and the work cannot be done with Mr Walker in situ. Outcome
The last day of the tenancy will be 11 September 2023.
For the reasons given above, I will not make any awards of compensation or exemplary damages to the tenant.
At the hearing, Ms McCumber made a request for name suppression.
The Tribunal may grant name suppression to a party if: a. The party has “wholly or substantially succeeded in the proceedings”; or b. The Tribunal considers it appropriate to grant suppression “having regard to the interests of the parties and to the public interest” 6 .
In this instance: a. Ms McCumber has not wholly or substantially succeeded in the proceedings; and b. There are no particular interests that could be unreasonably affected by the publication of the landlord’s name; and c. The applications raise issues of legitimate public interest.
Therefore, the request for name suppression is declined. 5 Section 60AA RTA 6 Section 95A RTA

Tenancy Tribunal case 4585630 — 14-day notice at Unit1, 164 Maunu Road, Woodhill, Whangarei 0110

Tenancy Tribunal case 4585630 — 14-day notice at Unit1, 164 Maunu Road, Woodhill, Whangarei 0110

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions