What was the outcome of Tenancy Tribunal case 4596031?

The tribunal order states: This order replaces the order issued on 15 September 2023.

How much money was awarded in case 4596031?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4596031?

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

Where can I read the official tribunal order for case 4596031?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10131364-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4596031?

The tribunal order states: This order replaces the order issued on 15 September 2023.

How much money was awarded in case 4596031?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4596031?

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

Where can I read the official tribunal order for case 4596031?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10131364-Tribunal_Order.pdf.

41 Luanda Drive, Ranui, Auckland 0612 Tenancy Tribunal Case 4596031 — 14-day notice

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Order

This order replaces the order issued on 15 September 2023.

The intituling in relation to the landlord name is amended due to an error.

While the tenant applied for suppression, no suppression order has been made in this case as the tenant was not wholly or substantially successful in the proceedings.

The application is dismissed.

Reasons

Both parties attended the hearing.

This amended order replaces the order issued on 13 December 2023. The District Court Rules 2014, clause 11.10(1), allows for a correction to an order by the Court or Tribunal who made it: if it (a) contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or (b) is drawn up so that it does not express what was decided and intended.

The tenant has applied for compensation in relation to maintenance issues and exemplary damages for a successor landlord failing to give notice and the landlord giving retaliatory notice of termination. Background

The tenancy began on 28 February 2015. On 29 May 2023 the landlord gave notice to terminate the tenancy in accordance with section 51(2)(a) Residential Tenancies Act 1986. The last day of the tenancy was to be 31 August 2023.

The tenant gave notice to end the tenancy earlier and moved out on 14 July 2023.

Following the ending of the tenancy the full bond was refunded to the tenant. Compensation for maintenance

The tenant claims compensation for maintenance that either was not carried out regularly, was not carried out well enough or was not carried out at all.

The tenant did not issue any 14 days notices in relation to maintenance during the 8-year tenancy.

The tenant referred to trees and bushes not being maintained regularly enough, window seals which were not effectively repaired, decking that was not treated effectively and a fence which was not repaired for a period.

In relation to the trees and bushes the tenant referred to the special conditions of the tenancy agreement signed when the tenancy commenced on 28 February 2015. The specific special condition states “Lawns to be maintained by tenants”.

Also, in that agreement at clause 2 on the same page it states “The tenant shall keep the gardens and grounds of the premises in a reasonably tidy condition and regularly cut the lawns and hedges (if any)”. The tenant says that this clause is overridden by the special condition and therefore the tenant is only responsible for the lawns. I find that the special condition and clause 2 both apply.

Section 40(1)(b) Residential Tenancies Act 1986 states, “The tenant shall keep the premises reasonably clean and reasonably tidy”. The Act defines premises as including “any part of any premises” and “any land and appurtenances, other than facilities”.

It is accepted that a landlord should be responsible for maintaining trees or plants where special equipment or expertise is required for maintenance purposes. The landlord submitted evidence showing that the landlord had carried out maintenance on the trees and large shrubs in 2020 and 2023. In addition, the tenant had recalled work carried out earlier in the tenancy.

The tenant’s expectation was that maintenance on the trees would be carried out every six months. Even if the landlord had agreed to carry out maintenance every six months it may not have been required. In the same way that there is no particular regularity required for mowing the lawns. It depends when it is required.

The issue that the tenant has is that occasionally they were required to carry out maintenance in relation to some of the trees and bushes during the tenancy. In order to do so the tenants spent money buying tools and spent time carrying out the tasks. As the tenancy agreement includes the cutting of hedges (if any) the tenant would need to obtain tools to carry out this maintenance or employ a contractor to do so as they would need to do to mow the lawns.

The photographs of the outside area shows a handful of shrubs and trees mostly on the perimeter of the section.

In relation to the window seals the tenant referred to photographs taken around April 2022 when she emailed the Property Manager following work being undertaken by a handyman. The tenant advised that the work was substandard, and the windows leaked.

The landlord disputed the evidence of the tenant that the windows were leaking. The landlord submitted the Healthy Homes assessment prepared in February 2020. The draught stopping standard (and all other standards) passed the assessment. I note that the landlord was not required to comply with the standards at that date and in fact did not need to comply by the end of the tenancy. The assessment is evidence that the landlord has taken steps to comply with the regulations earlier than required.

While the photographs produced by the tenant show that the window seals were not in great condition this is a house built in the 1970s and it is likely that the windows are original. That means that the aluminium windows would be around fifty years old.

The landlord submitted evidence in the form of invoices to show that maintenance was carried out on the windows in 2017, 2021 and 2022.

In relation to the decking the tenant says that the deck was water blasted by the landlord last year, but they expected more to be done to prevent deterioration. The tenant said that the wood was flexing but there were no holes in the deck.

The landlord produced evidence that the deck had been maintained in 2017, 2020, 2021 and 2022. When it was water blasted after the tenant’s complaint that it was slippery the contractor also applied a moss treatment.

The photographs of the deck show that it was an old deck, but it appears solid. The paint on the deck had peeled but it appeared structurally sound.

The tenant referred to the boundary fence between the tenancy and the nextdoor property. The fence was damaged during a storm early in the year and the neighbour attempted to apply a temporary fix. One part of the fence fell completely in May 2023.

The landlord confirmed that the broken fence required an insurance claim and communication with the neighbour.

The tenant acknowledged that there was agreement that the fence could be fixed following the end of the tenancy. During the period where the fence was not fixed the tenant had some difficulty using the driveway and the neighbour’s pets having access to their property.

On the evidence I am not satisfied that the landlord has failed to maintain the trees on the section, the window seals, the deck or the fence. The tenant’s claim for compensation is dismissed. Exemplary damages – successor landlord

The tenant seeks exemplary damages on the basis that the landlord failed to notify the tenant in accordance with section 15 of the Act.

Section 15 provides that, “Where, during the term of any tenancy, the landlord’s or tenant’s interest passes to some other person, that other person shall, within 10 working days thereafter, cause the other party to the tenancy to be notified of – a. The full name and contact address of that person; and b. An address for service...”

In this situation there was a change of Property Manager and the tenant complained that they received an email from a new Property Manager, and they were not advised of the change.

As discussed with the tenant, this is not the situation that the legislation concerns. The landlord’s interest has not passed to some other person. The Property Management company continues as the landlord’s agent and there has just been a change in the staff member dealing with the premises.

At the hearing the tenant acknowledged that this claim did not relate to this situation. The claim is dismissed. Exemplary damages – Retaliatory notice

Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised 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 or any complaint by the tenant against the landlord relating to the tenancy.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see s 54(2), (3) and Schedule 1A RTA).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).

There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?

The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.

Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.

In this situation the tenant wrote a lengthy letter to the landlord on 20 April 2023 detailing the issues that they saw with the tenancy. A response was requested from the landlord by 28 April 2023. On 26 April 2023 the landlord emailed the tenant advising that quotes would be arranged. On 19 May 2023 the tenant escalated their concerns as detailed in the letter. There was further communication from the landlord on 22 May 2023 and 25 May 2023.

The notice to end the tenancy was dated 29 May 2023. The notice issued complies with section 51. The application filed by the tenant on 11 June 2023 was within 28 working days of the notice being served.

In response to the claim that the notice was retaliatory the landlord produced a statement from the owner of the premises who lives in Australia. Accompanying the statement is a doctor’s certificate. The owner states that one of the major factors in deciding to sell the premises was her ongoing health issues and her inability to work. The doctor’s certificate confirms that the health issues has impacted on the owner’s ability to work.

While it may appear to the tenants that the notice to terminate was a reaction to the letter sent on 20 April 2023, I do not consider it to be retaliatory. I am satisfied that the owner was not motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment or by any complaint against the landlord. Also, the landlord produced evidence to establish that the premises have been placed on the market and is due to be sold by auction later this month.

The tenant’s claim for exemplary damages in relation to the notice being retaliatory is dismissed.

As the tenant has not succeeded with the claim, I make no award for reimbursement of the filing fee.