Published tribunal order
Tenancy Tribunal case 4604009 — Rent arrears at 15 Harley Grove, Boulcott, Lower Hutt 5010
Decided 19 Sept 2023 · Published 19 Sept 2023 · Application 4604009
Landlord favoured
- Rent arrears
Order
- No suppression orders apply around publication of this decision.
- The claim against Rentcare Property Management Limited is dismissed.
- The tenancy of Lily Lavana Daphne Voice at 15 Harley Grove, Boulcott, Lower Hutt 5010 is terminated, and possession is granted to Elsa Zhang immediately.
- The Bond Centre is to pay the bond of $3500.00 (5749177-005) to Elsa Zhang immediately.
- Lily Lavana Daphne Voice must pay Elsa Zhang $1,168.00 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. In this decision ‘landlord’ refers to Elsa Zhang not Rentcare Property Management Limited..
- Lily Voice has applied for compensation and exemplary damages for alleged breaches of the Residential Tenancies Act 1986 by the landlord. The claims include: a. Compensation of $6,762.00 – toilet blockage and shower etc. b. Retaliatory notice and terminating without grounds. c. Market rent reduction. d. Failure to meet Healthy Homes Standards. e. Failure to provide a Healthy Homes Report.
- Elsa has applied for termination of the tenancy, rent arrears, payment of the bond and exemplary damages for exceeding the maximum occupancy requirement. A. The Tenant’s Application Compensation regarding the toilet blockage.
- Lily Voice claims that Elsa breached her obligations under section 45 of the Residential Tenancies Act 1986. Under section 45(1)(b) a landlord must provide and maintain the premises in a reasonable state of repair. She has claimed exemplary damages for the unlawful act of failing to maintain the premises.
- On or about 15 May 2023 Lilly informed Elsa that the toilet was blocking and that the shower head was not working as it should. Lily said that she replaced the shower head and the toilet seat. On 10 June at about 11:30pm Lily informed Elsa that effluent was “flooding our upstairs bathroom downstairs & bathroom”. Because of the time of night Elsa was not able to get a plumber until the next day.
- On 11 June Capital Plumbing and Gas 2017 Limited identified a blocked gully. They had W&D Drainage attend with a flush truck and camera. W&D Drainage identified where the blockage was. The drain was blocked with the wipes used by the tenant. This was not the only cause of the blockage. There were also tree roots in the drain and part of the earthenware drain had collapsed. Capital Plumbing and Gas 2017 Limited charged $1,062.50 for the work but was not available to do the remedial work for two weeks.
- On 12 June Elsa contracted Brown Arm Boys Plumber who carried out remedial work costing $787.75 for unblocking and $1,883.51 for replacing the broken section of pipe. The plumber stated in correspondence that the broken section was replaced on 16 June.
- The plumber also found the shower waste was blocked. The plumber removed a child’s singlet and a razor. The plumber ran the water for 10 minutes without any problem.
- Following the replacement pipe on 16 June Lily’s child was on the toilet when there was an ‘explosion’ of air that showered effluent all over the bathroom. Brown Arms Boys returned at 8:30pm and confirmed that there was effluent on the ceiling and walls and floor. The cause could not be identified. The plumber flushed the toilet many times with no problem being found. There has not been any repeat of the ‘explosion’.
- Following these events Lily requested Elsa to pay her $875.00 compensation. That was $200.00 for damage to her property, $291.00 for rent reduction for the three days when the premises could not be used due to the plumbing issues and $375.00 for motel accommodation for 2 nights. Elsa paid the amount Lily had requested in compensation.
- In this application Lily has claimed $6,762.00 for the same event, including $207.00 for the shower rose. Normally once parties have reached agreement about compensation that is the end of the matter. However I am able to decide whether the amount paid is reasonable.
- Lily contacted Elsa on 15 May about drainage issues at the property but there is no record of Elsa actioning that request. Had Elsa done so the more serious blockage experienced on 10 June may have been avoided. Landlords do not always have to pay compensation for events that happen at premises that affect tenants. The Tribunal usually makes orders for compensation where an event could have been avoided because a landlord failed to address a problem. Therefore in this case, because Elsa was warned about a drainage issue on 15 May and did not take remedial action, compensation should be paid to the tenant.
- Considering what happened from 10 to 16 June I agree that the compensation should include the motel accommodation and the damage to clothing and a rent rebate. I am satisfied that the $875.00 paid by Elsa as requested by Lily is part of the amount the Tribunal would have ordered for this event. However because this event could have been avoided, I have added a further $750.00 compensation for a breach of the tenant’s quiet enjoyment of the premises. The failure of Elsa to attend to the drainage after notice on 15 May had a significant impact on the comfort of Lily and her family in the use of the premises in June, including the toilet explosion.
- I have taken into account that Elsa acted promptly when contacted by Lily in June and that Lily contributed to the actual blockage by the material she put down the toilet and the shower blockage was caused by the singlet and razor in the shower. I have also taken into account the toilet ‘explosion’. It was extremely upsetting for Lily and her young child but was not caused by anything Elsa did or failed to do. When the toilet explosion occurred there had been three plumbers attending to the blockage.
- I have considered Elsa’s response to other issues Lily raised in her 14 day letter to Elsa. I am satisfied that efforts were made by Elsa to investigate the work needed so as to arrange remedial work. Elsa did not ignore Lily’s requests. Showerhead cost
- I have ordered the cost of the showerhead replaced by Lily. Elsa has not disputed this amount.
Retaliatory notice and Elsa acting to terminate without grounds?
- In January 2023 Lily signed a tenancy agreement for a fixed term to 26 January 2024. At the time, Rentcare Property Management Limited (Rentcare) was managing the property. This changed when Elsa decided to manage the tenancy herself. Lily was aware of the management change.
- In a fixed term tenancy both parties are assured that the contract will be in place throughout the fixed term. The contract can only be changed by agreement of the parties or by an application to the Tribunal based on an unforeseen change in a party’s circumstances.
- On 11 June, after the overflow of effluent in the premises, Lily sent Elsa a 14 day notice setting out remedial work she wanted Elsa to attend to. Elsa responded by arranging plumbers but also giving the tenant 28 days notice to end the tenancy on the grounds that Elsa’s mother need the property. Lily has claimed that the notice was retaliatory. Elsa stated that the reason was genuine.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, a 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 (RTA).
- Elsa did not provide any supporting evidence about her mother needing the property except the email she wrote to Lily. It is too much of a coincidence that suddenly Elsa needed the tenancy for her mother the day after receiving a 14 day notice from her tenant. I find on balance of probability that it was more likely than not that the notice was retaliatory.
- Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
- I am satisfied that the termination notice was very upsetting for the tenant. She applied to the Tribunal for relief on 13 June.
- It is important that landlords do not use the easy way out of trying to force tenants out of premises when they have no right to do so.
- I am satisfied that the events and an evaluation of the events requires an order for exemplary damages.
- The second reason why Elsa had no legal right to send the termination notice on 12 June was because the tenancy was for a fixed term tenancy until 26 January 2024 and as stated above, a tenancy cannot be terminated unilaterally. Under s60AA RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded, .
- In either situation of retaliatory notice or attempting to end a fixed term tenancy unilaterally, exemplary damages may be awarded, up to a maximum of $6,500.00. See section Schedule 1A Residential Tenancies Act 1986. The maximum amount is ordered in the most serious cases where a landlord has been found to have repeated an unlawful act. This is the first instance that I am aware of where Elsa has breached the RTA in this way.
- The amount ordered is $2,500.00. Market rent.
- Lily has claimed that the rent charged by Elsa is greater than market rent. She has applied for the Tribunal to reduce the rent she has to pay.
- Section 25 RTA deals with market rent. Under s 25(1) a tenant can apply for a reduction in rent however s25(2) provides that: Notwithstanding anything in subsection (1), no application may be made under that subsection in respect of the rent payable under a fixed-term tenancy later than 3 months after— (a) the date of the commencement of the tenancy ...... (b) the date of the last review of rent
- Lily’s tenancy began on 27 January 2023. Her application is dated 13 June 2023. That is more than three months after the tenancy commenced. This claim is dismissed because the application for market rent is out of time. Failure to meet Healthy Homes Standards.
- Lily claims that landlord breached s45(1A). She claims that the events around drainage and other remedial are a breach of healthy homes standards. However the events regarding drainage are a maintenance issue not a Healthy Homes Standard issue and have been addressed above. For Lily to prove that the premises did not comply with Healthy Homes Standards she would need to provide a report from a contractor who is qualified to assess the premises. She has not provided that information. Failure to provide a Healthy Homes Report.
- Lily also claims that Elsa has breached her obligations under section 45 of the Residential Tenancies Act 1986 by not providing a Healthy Homes Report.
- Section 45(1)(AC) provides:. If the tenant requests the landlord to provide information described in section 123A(1)(e) (relating to the healthy homes standards) to the tenant, the landlord must, within 21 days after the date of receiving the request, provide the information to the tenant.
- Section 123A(1)(e) provides: the records or other documents that relate to the landlord’s compliance with the healthy homes standards and that are prescribed by regulations under section 138B(5):
- And section 138B(5) refers to section 13A(1)CA) The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
- Currently the only information that the landlord is required to provide is the statement that has been included in the tenancy agreement Lily signed with Rentcare. It is on page 3 of the Agreement.
- Lily has referred to section 66I(1)(bb) of the RTA but that section refers to Boarding Houses. 15 Harley Grove, Boulcott, Lower Hutt is not a boarding house.
- This claim is dismissed because Elsa supplied all the information that was required under the RTA regarding Healthy Homes. B. The Landlord’s Cross Application Exceeding the number of occupants
- Elsa Zhang claims that the number of people living at the premises exceeds the maximum number allowed in the tenancy agreement.
- Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A Residential Tenancies Act 1986.
- The tenancy agreement specifies that the maximum number of occupants to be ‘1 adult’. However at the time the agreement was written it was also known that there would be at least four other occupants because their names are recorded in the agreement.
- Clearly the tenancy agreement is incorrect when it states one adult occupant. I am satisfied that with this obvious error it would be unwise to find that the tenant breached occupancy restrictions. Termination, Rent arrears and the Bond
- Elsa has applied for termination of the tenancy, rent arrears and refund of the bond.
- Rent was at least 21 days in arrears on the date the application was filed. The tenancy is terminated. See section 55(1)(a) Residential Tenancies Act 1986.
- Elsa has provided rent records which prove the amount owing to 7 September 2023. Lily has failed to pay adequate rent since 19 June. Rent is $875.00 per week. Lily has paid $1,500.00 in the last eleven weeks. That is less than two weeks rent in eleven weeks. Even if the landlord causes a problem during the tenancy, a tenant does not have a right under the RTA, to stop paying rent. The rent arrears are now a substantial amount and Elsa is reasonable in requiring termination immediately.
- Any rent arrears after 7 September 2023 may be claimed by a separate application. Reinstatement at the end of the tenancy
- Elsa has requested the Tribunal to make an order for: “Tenant to reinstate premises at the end of the tenancy following minor change’. There are no grounds for the Tribunal to make an order regarding the condition of the premises at the end of the tenancy because at the time of the hearing the tenancy had not ended. The responsibility of tenants at the end of a tenancy are set out in section 40(1)(e) of the RTA. The responsibility of a tenant on the termination of the tenancy are,— (i) quit the premises; and (ii) remove all his or her goods from the premises; and (iii) leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish; and (iv) return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant; and (v) leave in or at the premises all other chattels provided by the landlord for the use of the tenant. Filing Fee
- Because both parties only were only partly successful with their claims, no orders for payment of the filing fee are made. The claim against Rentcare
- The claim against Rentcare is dismissed. There are no matters in the applications that require orders against the property management company. If the claim was about undue and unreasonable pressure put on Elsa to pay approximately $10,000.00 for to Lily to withdraw her Tribunal claim, the Tribunal; would have had some serious words about Rentcare’s conduct in that process.