Published tribunal order
Tenancy Tribunal case 4595050 — State of repair at Unit/Flat Unit 452, 35 Hobson Street, Auckland Central,
Decided 21 Aug 2023 · Published 21 Aug 2023 · Application 4595050
Tenant favoured
- State of repair
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Viaduct City Rentals and Aaron Starr must pay Charlene Parsons $370.44 immediately.
- The tenant’s claim in respect of the landlord failing to provide the premises in a clean and tidy condition and in a reasonable state of repair is allowed.
- The remaining claims by the tenant are dismissed.
Reasons
- Both parties attended the hearing.
- The tenant has made a number of claims against the landlord in respect this tenancy.
- The tenancy address is an apartment within an Auckland hotel. The occupants are the tenant resides there with her adult daughter.
- The tenant makes the following claims against the landlord: a. Unlawful discrimination b. Failing to provide receipt for rent c. Breach of quiet enjoyment d. Failing to provide premises in a reasonable state of cleanliness e. Retaliatory notice f. Interference with services to premises g. Unlawful entry by landlord h. Contracting to contravene or evade the provisions of the RTA
- The tenant says that the owner of the apartment screamed at the tenant’s daughter in respect of rent arrears. During the hearing the tenant accepted that her rent was in arrears. The landlord does not accept that the owner screamed at the tenant’s daughter. She accepts that they met each other in the hallway and spoke for approximately 3 minutes. It was further alleged that the owner received a text message from the tenant’s daughter alleging that the owner had sexually abused her. The landlord stated that any screaming in the hallway would have been picked up by the hotel security camera system. The tenant provided no evidence of this bizarre allegation.
- The tenant says that the landlord failed to provide a receipt for rent paid. Rent payments were made by internet banking and no requests for a receipt have ever been made by the tenant.
- The tenant claims that the owner breached her quiet enjoyment by accosting her daughter outside the apartment on 11 January 2023 yelling that she had not paid rent. The landlord strenuously denies this claim. There was also no evidence provided with this claim.
- The tenant says that the apartment was not provided to her in a clean and tidy condition. She says that the carpets looked dirty; the bathroom was not clean, and the apartment smelt bad and felt unhygienic. She said it smelt of cigarette smoke and had a dog-like smell to it. The tenant says that landlord arranged a cleaner to professionally clean the apartment however did not turn up until one week later. By that stage the tenant had cleaned the apartment herself. The landlord accepts this claim.
- The tenant also stated that the TV, dishwasher and fridge did not work. The landlord says that the owner agreed to replace the fridge, vacuum cleaner and floor lamp. This was done by the owner. The dishwasher was not replaced as there was never a complaint in respect of this.
- Under section 45, a landlord must • provide the premises in a reasonable state of cleanliness • provide and maintain the premises in a reasonable state of repair
- Charlene Parsons claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The landlord accepts the breach of obligations in respect of this claim. Accordingly, I allow this claim and award exemplary damages to reflect this.
- The tenant received a notice to vacate from the landlord on 9 March 2023. The tenant says that this notice is retaliatory. The tenant further stated that she refused to deal with the property manager and only wanted to communicate with the owner. The tenant stated that she had not received any response to her requests to the property manager. The landlord stated during the hearing that the owner lives in the same building. The landlord also stated that she received a telephone call from the owner advising that his wife had decided to move into the apartment at the end of the tenancy. She also confirmed during the hearing that the owner’s wife was still living in the apartment. The property manager knows this because she will often let contractors into her apartment which have been organised by the property manager.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
- I have carefully considered this claim by the tenant and find that there is no evidence of the notice being retaliatory. The notice was sent advising that the tenancy would not be extended at the end of the fixed term. The reason for the notice was so that the owner’s wife could move into the apartment. The landlord confirmed during the hearing that she did in fact move in and is still living in the apartment.
- The tenant claims that the landlord interfered with the supply of gas and power to the premises. The tenant stated that she was never advised that power to the premises was included in her weekly rent. The tenant contacted the owner to advise that the power was out. The owner replied by text message accusing the tenant’s daughter of being ‘a big fat liar’. The landlord says that she was away at the time the tenant complained about the power. The tenant sent a text message and an e-mail on 27 December 2022 stating that the power had gone out. During the hearing the tenant could not remember the date exactly and did not produce text messages and emails during the hearing. The tenant’s daughter was also there. The power was reconnected 10 days later. The tenant was only advised after 10 days that the weekly rent included power. The owner advised the tenant of this after 10 days. The tenant and her daughter had both text and emailed the property manager about this. The tenant stayed elsewhere for 10 days while there was no power. Having considered this claim I am satisfied that there is no evidence to support the allegation that the landlord interfered with the supply of power and gas services to the apartment. While I accept that the power was out for an extended period there is no evidence before me that this was a deliberate act.
- The tenant claims that an inspection agent from the property manager’s office conducted an inspection without notice on 7 March 2023. Viaduct City Apartments attended and inspected the apartment. The landlord says that it was a standard 3-month property inspection. The notice of inspection was emailed to the tenant’s daughter whose email address was recorded on the original tenancy agreement. The tenant’s daughter says she did not receive the notice. During the hearing I asked her to confirm her email address which was the same as the one originally recorded. During the hearing the tenant also stated that she had “done her research on the property manager’s software and believes that it has a fault.” The tenant could not elaborate on this nor did she provide evidence.
- During the hearing I provided the tenant’s daughter the opportunity to give viva voce evidence to which she did. She confirmed the living arrangement at the apartment. She confirmed that she moved in approximately one week after the start of the tenancy. She was not on the tenancy agreement but was living there with her two children and was sharing costs.
- The tenant’s daughter stated that she never received the notice of inspection from the property manager. She confirmed that the email address for service as noted on the tenancy agreement is the correct email address. She also confirmed that a breach notice dated 8 March 2023 was received at her same email address. She said that she was not home on the day of the inspection and was not aware that someone had been in the apartment earlier that day doing an inspection. She believes that the notice of inspection was not sent. The landlord not only confirmed during the hearing that the email had been sent she also forwarded the ‘sent’ email to the tenant which confirmed the date and time it was sent. The landlord also double checked during the hearing and could see that the email was sitting in the ‘sent’ folder of her email. I also viewed the landlord’s phone during the hearing and could see that the email had been sent.
- The tenant also claimed that the landlord was contracting to contravene or evade the provisions of the RTA. There was no evidence filed by the tenant in support of this claim.
- The tenant has applied for refund of the bond. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- The claim relating to the landlord failing to provide the premises in a reasonable state of cleanliness and repair is proved.
- The remaining claims by the tenant as recorded above are dismissed. I have carefully considered these claims and find that there is no evidence to support these. Some of the claims are simply implausible.
- Because the tenant has partially succeeded with her application I shall reimburse the filing fee.