Published tribunal order
Tenancy Tribunal case 4626709 — State of repair at 1 Momona Road, Greenlane, Auckland 1051
Decided 26 Feb 2024 · Published 26 Feb 2024 · Application 4626709
Tenant favoured
- State of repair
Order
- The Rent House Limited must pay Michael Luke Goodman and Mereula Lewaqona Nacewa Kurimavua $1,800.00 immediately, calculated as shown in table below.
- The landlord must carry out the following work to the premises, which must be completed by 28 March 2024 a. Replace bedroom curtains; b. Clean exterior of property
- As an alternative to compliance with Order 2, the landlord must pay the tenant $500.00 immediately.
- If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $500.00. These costs may be set off against rent payable.
Reasons
- Both parties attended the hearing.
- The Tenant has applied for work orders, compensation, exemplary damages, reduction in rent and reimbursement of the filing fee.
- The Landlord has applied for termination of the tenancy and compensation. Background
- This was a periodic tenancy that commenced on 14 May 2020. Rent was charged at $750.00 per week. Whilst the Tenant was not a qualified Builder, he submitted he previously owned a Building company and purported to have solid experience in the building industry. Both parties submitted extensive evidence which was all considered however may not be referred to in this Order.
- At the hearing, the landlord withdrew their claim for compensation.
- The onus is on the Applicant to prove their claim on a balance of probabilities and to bring evidence to support their claim. This means the Applicant must prove that it is more likely than not that their version of events is correct using corroborating evidence from witnesses or statements.
TENANTS CLAIMS
Compensation Failure to provide and maintain the premises
- The Tenant claims compensation of $14,750.00 because the Landlord failed to provide and maintain the premises in a reasonable state of repair (section 45(1)(b) and (c) of the Residential Tenancies Act 1986 (“RTA”), comply with Healthy Home Standards and comply with all requirements in respect of all buildings, health and safety under any enactment.
- The Tenants submit the Landlord took too long to make repairs at the property. The Tenants compensation claim took into account the number of days the tenants spent chasing up the Landlord, the Tenants efforts in contacting multiple government agencies, the Tenants tolerating multiple tradespeople attending the property and the amount of stress incurred over the past ten months. Flooding issues
- The Tenant stated there was a breach in moisture ingress and drainage. They claimed the property was repeatedly flooded which could be seen from the standing water in the gutters, lack of downpipes and water discharged directly under the house and straight into the driveway.
- The first time the Tenant discovered the flooding into the backyard, garage and carport was on 10 December 2022. The Tenants claimed the flooding damaged $20,000.00 worth of personal belongings stored in the garage which included bedding, work tools, sports equipment and a lawnmower. Because of repeated flooding events, this damage increased to $100,000.00 worth of goods. A photograph was provided of the Tenants personal goods in the garage however there were no purchase receipts provided to show the value of the items. The Tenants also submitted they had to take multiple days off work to empty the garage when bad weather occurred however no evidence was provided of the leave they took from their jobs.
- The Tenant submitted the Landlord initially attended the property on or about 13 December 2022 and failed to repair the downpipe and guttering which the Tenant deposed was the cause of the issue. The flooding became an ongoing issue culminating in hundreds of emails, phone calls and texts from the Tenant to resolve the flooding issues. Every time it rained, there was silt from the driveway and carport. The Tenants noticed all the water on the roof of the garage and carport would flow towards the blocked drain then back into the driveway. Approximately 30 percent of the water caught on the house roof was released directly onto the ground under the house and to the low point of the driveway. Whilst there was a drain, it was blocked partially due to the trusses.
- The Tenants always had to place items from the garage on the deck or in the house when it rained so they would not get flooded. They also had to store their freezer in the bathroom.
- As a result of the Landlords inaction, the Tenant contacted MBIE.
- In November 2023, the Tenant reported the downpipe issues again to the Landlord. The Landlord submitted the downpipes were unblocked however water still flowed straight to the moisture barrier and floods the driveway.
- The Tenant referred to a letter that was written by the Tenant to the Landlord stating that on 22 March 2023, he told the landlord the gutter was blocked because a vine was growing into it. He requested this be cleaned and then requested it to be cleaned again on 8 May 2023. An email was filed showing the landlord responded to him in June 2023, stating that the gutter was not blocked.
- On 26 June 2023, the Tenant sent a list of maintenance jobs to the landlord which had not been attended to since 8 May 2023. The Landlord responded in an email dated 27 June 2023 indicating seven out of eleven work orders were being done that week or explaining why some of them were not completed.
- The Tenants evidence included: -Photographs of the downpipe, gutters, flooded driveway on 9 May 2023. -An invoice from ‘Guttercare property services’ which did not refer to any property address. The Tenant submit this company advised the guttering was not repairable and needed replacing. There was insufficient downpipes; -An email from Auckland Council dated 3 October 2023 advising they did not agree with the Landlords Plumbers report that the spouting and cesspit were in average condition. They sent an advisory letter on 2 October 2023 which requires the Landlord to install, repair and maintain the gutters and downpipes. They have been given to end of October 2023 to undertake the required actions; -A report labelled ‘Tenancy compliance and investigations team site visit photo template’. The date was removed and this was presumably conducted before October 2023 when Auckland Council sent the advisory letter to the Landlord. It stated that the garage downpipe leading to the driveway with no gutter beneath leads to excess water in the driveway and flooding in the garage when they’re is heavy rain and downpour. There were photographs of standing water on the driveway and gutter leaks on the garage roof. The Landlord claims the Tenant wrote some of this commentary.
- The Landlord submitted the property was in a good state of repair and the flooding issues were resolved. She had been notified of flooding issues during major flooding events on 10 December 2022, 27 January 2023, 12 February 2023 and 8 May 2023. She was not notified of any other flooding issues by the tenant at the property after 8 May 2023.
- The Landlord also submitted they were not in breach of Healthy Homes Standards as the property was compliant and they had until 1 July 2025 to ensure compliance was completed. They submitted a Healthy Homes Assessment report dated 14 July 2020. This was non-compliant with the ventilation and moisture ingress standards however these have since been rectified.
- The Landlord submitted she attended the property on 13 December 2022 and found the Tenant trimming trees and cleaning the guttering. It appeared as if the flooding was not a priority that day. The Landlord submitted the flooding was not due to the downpipes but there was a weather event at that time. The whole of Greenlane was affected and this area was a flood zone. The Landlord produced a Herald newspaper article at the time reporting flooding from the Greenlane to Herne Bay zones.
- The flooding on the other dates were explained by other events. On 27 January 2023, there was the Auckland Anniversary weekend local state of emergency. On 12 February 2023, there was Cyclone Gabrielle and on 8 May 2023, there was heavy rains after a civil defense alert was circulated. The Landlord submitted, the photos of the flooded driveway shown by the Tenant were during the height of these floods and not due to drainage issues.
- An email from the Landlord to the Tenant confirmed on 11 December 2022, she had arranged a work order to repair the downpipe. Prior to that, there was an invoice filed showing the spouting was cleaned and fixed on 23 November 2022.
- The Landlord submitted the delay to maintenance requests in May 2023 was due to many tradespersons being busy with the repairs after the Auckland Anniversary floods. They needed to get insurance assessors to the property before any work could get started.
- On 27 June 2023, the Landlord conducted an inspection and the inspection report filed showed that the garage was dry after a lot of rain. The photos show the carport is partially wet without puddles and the driveway is wet. The Tenant reported that it floods however the Landlord could not see this. The Landlord installed shelves to appease the Tenant.
- On 12 July 2023, the Landlord sent an email confirming she was obtaining a quote to remove the excess dirt by the carport to prevent the pooling of water in this spot. The Tenant opposed this as they believed the water would drain onto the neighbour’s property however there is a garden on the neighbours side of the fence.
- The Landlord attended the property on 21 July 2023 and then on 20- 21 August 2023 when there was reportedly 40 mm of rain to look at the flooding issues. She submitted there were puddles on the property but nothing preventing the use of the driveway or showing flooding. Photographs were provided of the property which showed a puddle to the left of the carport on 21 July 2023 after the heavy rain had subsided. It was not flooded.
- On 7 September 2023, the Landlord conducted an inspection of the property which was filed. On that day, a list of maintenance requests was provided by the Tenant. The Landlord responded via email on 8 September 2023 advising they had placed work orders for some of the repairs. Those that were not attended to were given explanations by the Landlord.
- On 22 November 2023, the Landlord discovered the property had soak holes in the garage, back of the house and under the driveway. These soak holes made the property compliant.
- On 7 December 2023, the Landlord conducted an inspection of the property and noted there was no leaks in the garage from looking through the window. This inspection report was submitted and the photograph showed a dry floor. The report showed the house was dry underneath despite the Tenant submitting that water gushes through there every time it rains and it had rained a few days prior. There was no evidence of water. The Landlord reported the Tenant complaining that water floods under the house and onto the driveway every time it rains however the Landlord submitted the house was bone dry. There was no evidence of this.
- The Landlord submitted there had been no other flooding events in the last 35 years since the Owners purchased the property. The Landlord deposed if the property was so badly maintained, the tenancy was periodic so they could move out if the conditions were as bad as they purported.
- The Landlord submitted that they responded to the Tenants requests for maintenance in a timely manner and if there were delays, it would be due to insurance or obtaining quotes for the major jobs. Sometimes, the Tenant would not answer the contractors telephone calls and the Landlord submits that the Tenant would also interrupt contractors by telling them how to do their jobs or asking for work that was not approved by the landlord.
- The Tenant requested the down pipe form the right side of the carport to go into the storm water drain. This would require a drain to be dug from the carport to the road. The Landlord’s plumber advised this would not resolve the flooding issues and it would not be able to quote with the excessive water. An email was provided to substantiate this.
- The Tenant sent a list of maintenance issues to the Landlord on 8 May 2023, 26 June 2023 and 11 November 2022. These lists were filed and invoices were provided from the Landlord of the repairs undertaken which appear to be done in a timely manner. An email response from the Landlord dated 10 May 2023 was filed, which showed the Landlord accepting a quote for a repair to the driveway, agreeing to install garage shelves and clearing the garage drain. If any repairs were not attended to on the Tenants list, it was where the damage was caused by the Tenant or items the Landlord considered did not need to be replaced such as the swollen bench top or curtains.
- The Landlord submitted the garage was able to be used to park cars on wet days and there was no loss of amenity. The Landlord was not responsible if the tenant wanted to store furniture there because the house was advertised as a home with a garage not a storage unit. The Landlord filed a copy of the advertisement for the property. The Landlord deposed the Tenants should have also filed insurance for these items.
- The Tenant referred to other issues showing the lack of maintenance by the Landlord as follows: a) The deck was in poor condition. The Tenant submitted it had rusty hinges, loose handrails, was not fit for purpose and there was no support in the middle of the deck. The Tenant cut their foot on a rusty hinge however no evidence was provided of this. They did not use the deck for three months because it appeared to be unsafe. Photographs were provided of the deck which showed the hole in the deck and it appeared to be in a very worn state. The Landlord built a new deck which was completed by August 2023. The Landlord submitted this was compliant with building standards and their witness at the hearing, Mr Heremaia who was a qualified builder endorsed this. The Tenant submitted the new deck was not compliant because it was missing a pile in the middle of the deck which contravened the building code and bolts were missing from the handrails until 29 November 2023. Photographs were provided of this and a new joist that was later installed. There was no evidence from a qualified professional to support his statement. b) The Tenant submitted a whole new fence was required because the fencing repairs completed by the landlord left it in a worse condition. A photograph was provided of a standing fence however the top of the fence had loose planks of wood attached. This did not however appear to affect the function of the fence. The Landlord submitted they would not repair this as it was only cosmetic and the fence was in an adequate condition. c) As a result of the Auckland Anniversary flooding event, the heat pump was damaged. It took 13 weeks to replace because the Landlord had to apply through insurance to do this. The Tenant found this wait excessive. d) Algae and mould covered the exterior of the house. The Tenants spoke directly to the owner who promised to have it water blasted when he attended the property. Three months later this was not completed. The Landlord submitted this was a cosmetic issue and did not need to be repaired. e) The Tenant submitted the metal basin plug in the bathroom was stuck and did not get repaired properly until three months later. They could not use this basin for 3 to 4 months. I find that even though this was not in a reasonable state of repair, the tenants could have used another basin in the property. f) On 8 May 2023, the Tenants notified the Landlord regarding the backing of the curtains in the Tenants bedroom which were stuck together and ripping. The Landlord submitted this may have been due to the children swinging on them or the Tenants heater. g) The Tenant submitted the neighbours tree overhung their property and twigs would fall which had sharp rose thorns. The Tenants lawn was covered with 20-30 sticks which the tenant had to mow. The Landlord submitted this was the neighbour’s trees and they had no control over the neighbour trimming it. h) The Tenant submitted wires from the street power pole fell across their driveway as a result of the Auckland Anniversary floods. The Tenant had to build a ramp so his car would not get damaged by the wires. The Tenant contacted various services such as Vector, Auckland Council and Auckland Transport to repair this issue. The Tenant provided photographs. The Landlord submitted, there were no wires being exposed by the driveway. They were contained around the street pole and away from the property. A photograph was provided to show there was some distance between the pole and the driveway. There were no exposed wires lying across the driveway. i) The Tenant submitted the timber had rotted in the garage roof trusses and needed replacing. The Tenant provided photographs of the garage taken on 8 January 2024 which showed the rotting was still prevalent. Mr Heremaia gave evidence at the hearing that these trusses did not need to be replaced at this stage. j) The Tenant submitted the paint was peeling on the exterior of the house and there was mould on the outside of the garage. The Landlord submitted this was cosmetic. The law
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
Has the landlord failed to comply with their obligations?
- There was substantial evidence provided by both parties in support of their submissions regarding the state of repair and landlords maintenance of the property.
- In considering the Landlord’s evidence, I find the downpipes and guttering were in a reasonable state of repair because there was no evidence from the Council after October 2023, to verify repairs from the Landlord. The Tenant’s plumbers ‘Guttercare’, who inspected the property did not refer to the specific address of the property in their report so it could have been any property assessment. The Landlord made genuine efforts to check any flooding effects on other days when it would rain and provided inspection reports which verify there was no flooding after the rain. They filed evidence from their Plumber, stating that the guttering would be sufficient for another five or so years. If the Tenant’s evidence from their Plumber referred to this specific property and stated it was inadequate and needed a whole replacement, this would have been more persuasive. The Tenant may have had a sound understanding ofthe guttering system however they did not provide qualifications of their expertise.
- In terms of the other repairs to the property, the Landlord was notified of the deck issues February 2023. They replaced the whole deck in August 2023 because they had to obtain quotes, deal with insurance assessors and they found it difficult to find tradespersons given the impact of the Auckland Anniversary events. I take these factors into account and find that whilst the deck was replaced, it was still not in a reasonable state of repair. The Tenant was unable to use the deck for approximately six months. I find the Tenant should be awarded 10% of the rent per week for the loss of use of the deck whilst it was being repaired. This equates to $1800.00.
- With respect to the garage trusses, I find it was in a reasonable state of repair. This is because the Builder gave evidence that the frame was in adequate condition. The Tenant provided photographs of rotted wood however nothing from a Builder or expert to confirm this was defective.
- I also find that whilst the sink plug was not in a reasonable state of repair, this was replaced within two months and the Tenants had access to another sink at the property. There was no evidence as to the loss they endured as a result for damages to be awarded.
- In terms of the algae and mould, I find the exterior was not in a reasonable state of repair and the Landlord should have water blasted this. I do not find however that the Tenant suffered any losses from this and do not make any awards accordingly. The Landlord must fix the algae and mould and I will make a work order accordingly.
- In terms of the exposed cables on the driveway, I do not find the evidence persuasive that this was the case from the photographs provided. I did not see any exposed cables and cannot see how the Tenants car was possibly damaged from the driveway. I dismiss this claim.
- In terms of the curtains, I accept that the damage was wear and tear and make an Order for the Landlord to repair these immediately. I make a work order for the curtains to be repaired. Exemplary damages
- Michael Luke Goodman and Mereula Lewaqona Nacewa Kurimavua claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
- 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 failed to provide a deck, plug, curtains and in a reasonable state of repair. I find they have committed an unlawful act.
- 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 section 109(3) Residential Tenancies Act 1986.
- The Landlord submitted in their evidence that they repaired the deck, replaced the plug and did not find the curtains were in an unreasonable state of repair. They inspected these issues when the Tenant raised them and arranged work orders to have them repaired. I find the Landlord therefore did not intend to breach the act because they made genuine efforts to repair them. Because there was no lack of intention to fail to maintain the property, the claim is dismissed. Cancelling rent increase
- The Landlord served a notice to increase the rent from $750 to $810.00 from 31 August 2023. The Tenants submit this is a retaliatory notice because the notice came a few days after they filed their application to the Tribunal. They also submit the amount of $810.00 is in excess of the market rent and should be reduced.
- The Landlord submitted this was not a retaliatory notice. The rent has not been raised since over a year and was actually reduced during COVID from $785.00 which is what the previous Tenants paid. The new rental amount is below market value given this house is located in the Grammar school zone. At the time of the application there were no 3 bedroom homes available to rent in Greenlane demand is high. There were several four bedrooms available to rent at $1100 plus however no evidence was provided by the Landlord to substantiate this. The Landlord submitted an advertisement for a home that was rented at $830.00 per week. The Landlord had made a number of substantial repairs to the property including the deck and there had been no increase in rent since 2021.
- Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
- In the case of a fixed term tenancy, any application must be filed no later than 3 months after the start of the tenancy or the last rent review (see s 25(2) RTA).
- The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
- The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.
- The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
- The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
- The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
- It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
- The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
- Section 25(4) RTA provides that a market rent order may not take effect any earlier than the date of the application or any later than 30 days after the date of the order. The order may last for up to 6 months in the case of a periodic tenancy, or for such shorter period the Tribunal specifies. In the case of a fixed term tenancy, the order remains in force for the period specified in the order.
- In considering the evidence, I find this not a retaliatory response by the Landlord given it has been sometime since the last increase occurred. The Tenant submitted this rent increase was above the market rent in the area however they did not provide any evidence to support this. The Landlord submitted the notice in August 2023 was after they did an annual review. They provided information regarding the market rent in Greenlane and an advertisement of a property in the same area with rent that was higher.
- As the Tenant has not provided sufficient evidence to indicate what they purport the market rent to be, the claim is dismissed. Breach of quiet enjoyment
- The Tenant claimed the Landlord breached their quiet enjoyment due to the numerous contractors coming to the property month after month to undertake repairs. They arrived unannounced 30 times, would block the driveway and would not clean up their rubbish which was left for weeks on end. Some of this rubbish was hazardous particularly for the Tenant’s children. Jobs that could be completed in 2-4 days would take five weeks so the property was left unsafe and dirty. It was like living on a building site. Photographs were shown of the rubbish left behind by the contractors and sawdust on the garden and driveway.
- The deck was completed on 21 August 2023 but a photograph of the rubbish showed the rubbish was collected 8 days later after the deck was finished. There was other rubbish from the deck collected on 4 October 2023. The Tenant gave evidence that tradespersons turned up unannounced on 9 January 2024 to remove the excess soil. He also gave evidence that Mr Heremaia turned up unannounced on 21 and 28 August 2023 but went straight to the garage or straight to collect the rubbish in the back yard.
- The Landlord submitted the contractors were advised by the Landlord to contact the Tenants directly to arrange times to attend the property. The Landlord submitted they were told the contractors always called first before attending hte property. Mr Heremaia gave evidence that he always contacted the Tenant’s wife before he came because the Tenant could not be contacted at times. The Landlord submitted that the contractors were still completing their work so they did not clean-up until the job was complete. They showed a photograph of a gate left behind on the property which the Tenant complained about however the gate job was not completed at the time the Tenant complained.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton/
- I do not find the Landlord has committed an unlawful act. There were several maintenance jobs required at the property. The Tenant submitted there were at least 30 unannounced visits by tradespeople however there was no recording of each date to questions the Landlord nor was there independent evidence to verify this. Mr Heremaia also submitted he would always contact the Tenants before they came.
- In considering the evidence, I find the Tenant has not provided sufficient evidence to prove their claim that the contractors came repeatedly at the property unannounced and that the visits became harassment for the Tenant. They claimed this occurred 30 times however not all the dates were provided. The contractors were attending in response to the Tenants notifications of repairs which were ongoing. Some of these jobs were substantial such as the deck and some required multiple visits to investigate such as the gutter repairs. For this reason, I do not find there was harassment by the Landlord.
- The claim is dismissed.
LANDLORDS CLAIMS
Termination
- The Landlord has claimed termination of the tenancy based on section 55 (1)(c )of the RTA because the Tenant was abusive to Tradespersons and the owner. When the Owner attended the property, the Tenant would constantly swear when referring to the issues that needed to be repaired. On one occasion the Tenant threw their arms in the air and appeared to behave aggressively not directly towards the Landlord but out of frustration. It still made the Landlord feel intimidated to the point he did not want to deal with the Tenant anymore.
- The Tenant claimed they never swore at the Landlord or the Tradespeople. They swore when describing what needed to be done but it was never directed at the Landlord or the Tenant.
- Section 55(1)( c) RTA provides: Subject to subsection (2), on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that— The Tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: (i)the landlord or any member of the landlord’s family: (ii)the owner of the premises or any member of the owner’s family: (iii)any agent of the landlord: (iv)any occupier of any building of which the premises constitute a part
- In considering the evidence, I find the Tenant did not assault, threaten to assault the Landlord, the owner or the Tradespeople. They were extremely frustrated and would use inappropriate language however their behaviour was directed at the maintenance issues, not the Tenants. I find the Tenant therefore has not breached the Tenancy agreement.
- The claim for termination is dismissed.
- As neither party has been wholly or substantially successful in their claim, both parties shall pay their own filing fee and name suppression is not granted.