What was the outcome of Tenancy Tribunal case 4628411?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4628411?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4628411?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4628411?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9318239-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4628411?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4628411?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4628411?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4628411?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9318239-Tenancy_Tribunal_Order.pdf.

Apartment 22E, 166 Gloucester Street, Christchurch Tenancy Tribunal Case 4628411 — Leaks

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Reasons

Both parties attended the hearing. Ms Heyward attended for the landlord.

Mr Cattermole has applied for a work order for repairs to a sliding door, market rent assessment, compensation and exemplary damages. The work order was not pursued at the hearing as the sliding door has been fixed. Market Rent Assessment

Mr Cattermole has applied for a market rent assessment following a notice of rent increase dated 10 May 2023.

The tenancy began on 25 June 2021 for 12-month fixed term at a rate of $775.00 per week.

In April 2022 the landlord advised the tenant of a rent increase to $830.00 per week. Mr Cattermole challenged that increase due to the inconvenience of repairs early in the tenancy. The landlord agreed to a lower weekly rent of $810, effective from 1 July 2022.

Mr Cattermole maintained that the lease was renewed for a further fixed term. An objective reading of the correspondence does not support that assertion. The tenancy became periodic on the expiry of the initial fixed term.

On 10 May 2023 the landlord gave notice of a rent increase to $885 per week. Mr Cattermole did not agree with the rent increase and applied for a market rent determination.

The subject property is a 3-bedroom, 2.5 bathroom furnished apartment in the Fable Hotel in Gloucester Street, Central Christchurch. This apartment is on the top level and occupies half of the floor, described by Ms Heyward as the penthouse level.

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.

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. 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.

In this case the parties provided very little evidence of comparable rents. Mr Cattermole provided a Trade Me print out for a three-bedroom townhouse nearby at $900 per week. Mr Cattermole did not refer me to advertisement during his evidence. He did refer an apartment on the same floor as the subject premises (22W) which rented for $950 per week. He describes 22E as the superior apartment.

Mr Cattermole also submitted that the real rental for 22E was $775 per week. He argued that the annual rental was $49,400, allowing for the property being vacant for 9 to 10 weeks, which equates to a weekly rental of $775. Mr Cattermole’s argument is without merit. It does not represent the weekly rental that a willing landlord will accept, and a willing tenant will pay. That amount is the agreed weekly rent for 22E of $950.

Ms Heyward provided some evidence of comparable rentals; all in the same apartment building as this one. She also referred to 22E and confirmed that it is currently rented for $955.00 per week. She did not accept Mr Cattermole’s assertion that 22E is superior. Having reviewed the evidence including photographs, I agree with her assessment that the properties are comparable.

Ms Heyward referred to 2 other apartments in the building; 18W and 19E. While lower down in the building both occupy half a floor and are 3 bed, 2.5 bathroom. They are reasonable comparables tor the subject property. 18W was rented until June 2023 at a weekly rent of $950 per week. 19E is unfurnished. It was listed for rent in June 2023 and has achieved a weekly rental of $990.

Mr Cattermole also raised a number of alleged issues with the property as being relevant to a market rent assessment. Those issues were duplications of his compensation claim and are not relevant to my market rent assessment. The only exception to that, was the allegation that the property does not comply with the Healthy Homes Standards in relation to the ventilation in bedroom 3, effectively reducing the number of bedrooms to 2. The argument appeared to be that it would be more appropriate to consider comparable rentals for 2-bedroom apartments. However, there was no evidence presented in relation to such properties. Nor was there any independent, objective evidence of non- compliance.

Ms Heyward provided a copy of a Healthy Homes Assessment for the apartment which records that all bedrooms meet the HHS through mechanical ventilation.

The evidence points to a market rent in the vicinity of $950 per week for this property. The current weekly rent of $885 is less than that. The tenant has not proved, on the balance of probabilities, that the rent exceeds market rent by a “substantial amount”. The application for a market rent assessment is dismissed. Compensation Claims

Mr Cattermole applied for compensation of $10,000 for five alleged breaches of the landlord’s obligations as follows: a. Difficulty in establishing suitable internet connectivity. b. Roof leaks. c. Toilet repairs. d. Laundry leak. e. No hot or cold water, just arrange of warm.

Ms Heyward disputed the claims. She said that, to the extent repair or maintenance has been required it has bene dealt with promptly and appropriately. She also noted that the landlord had attempted to compensate Mr Cattermole for any inconvenience relating to repairs and maintenance when it agreed to a rent reduction in May 2022.

Mr Cattermole claims that he should be compensated for difficulties he experienced in securing an internet connection at the property.

Under section 45B, a landlord must, except in certain circumstances, permit the installation of a fibre connection in the premises if— a. there is no fibre connection in the premises; and b. it is possible to install a fibre connection in the premises; and c. the tenant requests a fibre connection; and d. the fibre connection can be installed at no cost to the landlord (for example, because the cost is covered by the UFB Initiative).

This does not appear to be a situation to which s45B applies. There was a fibre connection to the building. Rather Mr Cattermole claimed that the hotel, which operates from the building, had insufficient bandwidth to provide internet capability to him.

Mr Cattermole claimed that it took 8 months and 60-man hours for him to resolve internet issues and secure an internet service. He complained that he had to pay for a business s connection, at increased cost. Mr Cattermole was running a business from the premises. It seems more likely that this is why he is on a business plan, rather than because of any breach by the landlord.

Mr Cattermole did not establish that the landlord has committed any breach of its obligations in relation to an internet connection, or that he has suffered a loss as result.

The tenant put forward very little evidence in relation to the claims for roof leaks, toilet repair, laundry leak and tepid water temperature. However, Ms Heyward presented detailed responses on all issues.

The tenant has the onus of establishing its claims to the required civil standard and Mr Cattermole has not done that. The evidence he did provide lacked detail. In contrast, the evidence from Ms Heyward shows that the landlord responded to requests for repairs or maintenance promptly and proactively. The claims for compensation are dismissed. Exemplary Damages Claim

Mr Cattermole also claimed exemplary damages. He said that a contractor of the landlord entered the premises without notice or consent.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

A contractor and a property manager engaged to look after the commercial properties within this complex entered the premises using a key fob in May 2023. There was no prior notice to Mr Cattermole. In fact, Ms Heyward was unaware of the intended entry at the time. Mr Cattermole identified himself on their entry and allowed the painter to carry out touch up work.

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 entry by the owner’s commercial agent amounts to an unlawful act by an agent of the landlord. However, it was inadvertent, not intentional. Mr Cattermole did not establish any entitlement to exemplary damages. That aspect of his claim is also dismissed.