What was the outcome of Tenancy Tribunal case 4661232?

The tribunal order states: Melissa He must pay Ghaleb Qtaishat $1,067.96 immediately, calculated as

How much money was awarded in case 4661232?

Water Rates: $82.04 awarded to landlord; Water Removal Charge 1: $402.50 awarded to tenant; Water Removal Charge 2: $747.50 awarded to tenant

What type of tenancy dispute was case 4661232?

The dispute type was not classified.

Where can I read the official tribunal order for case 4661232?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9631046-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4661232?

The tribunal order states: Melissa He must pay Ghaleb Qtaishat $1,067.96 immediately, calculated as

How much money was awarded in case 4661232?

Water Rates: $82.04 awarded to landlord; Water Removal Charge 1: $402.50 awarded to tenant; Water Removal Charge 2: $747.50 awarded to tenant

What type of tenancy dispute was case 4661232?

The dispute type was not classified.

Where can I read the official tribunal order for case 4661232?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9631046-Tribunal_Order.pdf.

27 St Vincent Avenue, Remuera, Auckland 1050 Tenancy Tribunal Case 4661232 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4661232 — net $1,067.96 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$82.04		Water rates
Water removal charge 1		$402.50	Water removal charge 1
Water removal charge 2		$747.50	Water removal charge 2
Total award	$82.04	$1,150.00
Net award		$1,067.96
Total payable by Landlord to Tenant		$1,067.96

Claims and awards in Tenancy Tribunal application 4661232 — net $1,067.96 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$82.04		Water rates
Water removal charge 1		$402.50	Water removal charge 1
Water removal charge 2		$747.50	Water removal charge 2
Total award	$82.04	$1,150.00
Net award		$1,067.96
Total payable by Landlord to Tenant		$1,067.96

Order

Melissa He must pay Ghaleb Qtaishat $1,067.96 immediately, calculated as shown in table below.

Reasons

The Tribunal must consider an applications filed by both the tenants and landlord, and there are various claims that each party has advanced, as will be set out below.
Both parties appeared at the hearing today on 10 November 2023.

BACKGROUND

The tenancy agreement records the landlord as Melissa He, and the tenant Ghaleb Qtaishat. The premises are located at 27 St Vincent Avenue, Remuera, Auckland.
The tenancy commenced on 10 May 2021, initially as a fixed term tenancy of one year duration. The rent was $1,350.00. Then on 9 May 2022 the parties agreed to extend the fixed term tenancy for two further years as follows: a. 26 June 2022 to 26 June 2023, for rent of $1,400.00 per week; then b. 26 June 2023 to 26 June 2024, for rent of $1,450.00 per week.
It is plain that things have not gone smoothly at the tenancy, and there have been disagreements and friction between the parties on a range of matters, which will have contributed to some of the issues arising in the claims before me.

RELEVANT LEGAL CONSIDERATIONS

Before I consider the specific claims, I note some general legal considerations I must make.
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

LANDLORDS CLAIMS

The landlord has applied for an order that the tenant pay water rates, and orders around inspections and maintenance. Water rates
The landlord says that the tenant has missed paying $82.04 of water rates for the November 2022 water rates invoice, and now claims payment of that amount. In support of the claim the landlord produced a ‘ledger’ of the various amounts and dates payments were made.
The tenant states that in December 2022 there was a change in how invoices were provided, and that the invoice was in fact paid. The tenant says that he provided evidence of the disputed payment in February 2023, and in short the tenant says he is up to date with the water rates. The tenant referred to various statements from the BNZ showing payments for water.
In response the landlord confirmed that co-incidentally the volumetric water charge for November 2022 and January 2023 were both the same amount, $82.04. The landlord challenged the accuracy of the BNZ statement from the tenant dated 6 August 2023 (9:22 PM), noting that the payment date recorded on the statement was “19 December 2023”, which is a date in the future. Analysis
The tenant has not disputed liability for the water charge, rather the tenants position is that the required payment of $82.04 has been made. That charge related to a water invoice from late November 2022.
In support of the tenants defence to the claim, the tenant produced a document with a BNZ bank logo, entitled “Bill payment bank acknowledgement”. On the face of this document, it records that $82.04 was paid to an account which the landlord confirmed is her account, but as the landlord has correctly noted, the date the payment is recorded as occurring is 19 December 2023, which is a date that has not yet occurred.
There is no evidence before the Tribunal to explain why there is a future date recorded on the statement, perhaps it is a date that a payment has been scheduled to be made, I do not know, but taking the document at face value, it does not support that a payment has been made as of the date of the hearing.
I find therefore that the landlord has established that the tenant owes $82.04 for water rates, and that is ordered to be paid. Entry for inspections of property
The landlord states that property inspections have been difficult, because the tenant has limited inspections to 6 monthly and only for some 15 minutes. The landlord states that only two inspections could be done at the tenancy.
More recently the landlord has given the tenant a weeks’ notice to undertake an inspection, but the day prior to the scheduled inspection the tenant advised that someone in the house had COVID so the inspection would need to be delayed, and when the landlord tried to get inspections undertaken the tenant would respond with treats and harassment.
The tenant disputes that he has refused to allow any property inspection, other than the time there was COVID in the home, and the tenants wanted to defer the inspection. The tenant said that when there were issues with water leaks and flooding they called the landlord, who attended to inspect the issues shortly thereafter, including the contractors to repair the problem. The tenant also notes that the tenants have allowed valuers into the premises, including other tradesmen at the request of the landlord.
In response to the landlords statement about locks, the tenant said that when the landlord did work the security fence has been broken.
The tenant states that the reference to six monthly inspections only were a suggestion given they keep the house in such good condition.
The landlord says that when request for inspections are made, the tenant responds with lengthy discursive responses.
Further the landlord has complained that the tenant has installed security cameras. Analysis
It is sensible to start by setting out what the legal criteria is in relation to inspections of tenancies, I am hopeful that in doing so that will resolve any uncertainty that may arise between the parties.
Section 48 sets out the landlords right of entry, and confirms that the landlord can enter the premises either with the consent of the tenant, or after giving the tenant notice. Strictly speaking the landlord does not need to give notice to undertake an inspection of the tenancy if the tenant consents to the entry, but it is very usual in New Zealand that inspections are only ever undertaken after landlord gives proper notice.
The RTA confirms that that relevant requirements as far as notice for inspections is concerned, is as follows: for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks; or
Strictly therefore, the landlord is lawfully entitled to undertake inspections every four weeks (but not more frequently), but that frequency of inspections would be uncommon.
If the landlord gives notice of an intended entry, a tenant cannot decline to allow entry, but it is important to recognise that section 48(4)(b) confirms that it is an unlawful act for a tenant to refuse entry after a notice has been given, without a reasonable excuse. In the event a refusal occurs, then the landlord can apply to the Tenancy Tribunal to award exemplary damages, and if the Tribunal determined that the tenant did not have reasonable grounds to refuse entry, exemplary damages could be ordered.
It is also relevant to note, that for the purpose of section 48, subsection 7 confirms that: In this section premises does not include land or facilities.
What that means is that the landlord does not need to give notice in order to go onto the land, or facilities of the premises, and neither does the landlord need the tenants prior consent.
In this case there is evidence that the tenants declined to allow entry following notice, on the basis that occupants of the dwelling had COVID. In my view that would not be unreasonable.
But again, I am hopeful of having set out what the legal criteria is, the parties will now be able to move forward better understanding what respective legal expectations are, in relation to property inspections. But beyond that there are no grounds to order compensation or exemplary damages. Maintenance
The landlord wishes to have maintenance undertaken at the premises and referred to gardening work as being needed. The landlord states that the tenant provides unreasonable conditions, and the tenant has not provided a key to the gate lock. Analysis
Landlords are required by the RTA to maintain the premises. But to a degree that must be a two way street, in that the tenant must facilitate access to the premises, for that maintenance to occur. One of the issues that has arisen in this case, is that the tenant has applied a lock to the garden gate, which has made it difficult for the landlord to access the premises.
As I advised the parties at the hearing, the RTA precludes locks being applied by one party without the approval of the other. Section 46 to relates to Lock’s, and confirms: Neither the landlord nor the tenant shall alter any existing lock or similar device, or add to or remove from the premises any lock or similar device, without the consent of the other given at the time that, or a reasonable time before, the alteration, removal, or addition is carried out.
I have no doubt that applying a padlock to the gate would be in consistent with the tenants legal obligations under section 46, but record confirmation that the tenant gave at the hearing, that a key for the lock will be provided to the landlord without delay. No doubt that will allow the landlord to access the grounds for maintenance in any event.
As I have indicated above, the landlord does not need to give notice that the landlord or the landlords agent was to enter the grounds to undertake maintenance outside the property, but again most landlords do have the courtesy to advise the tenant in advance when that access to the premises would be made.

TENANTS CLAIMS

Market rent

The tenants position is that the rent for the premises are beyond a market rent. The tenant refers to Trademe listings which he considers would be similar to this property. The tenant says that while the property is ‘4 bedroom’, one of the rooms is only a ‘rumpus room’.
The tenant further says that there are quality problems with the property such as with mould and water leaks. The tenant considers that a rental around the $1,000.00 mark would be reasonable.
In response the landlord disputes this claim, on the basis that there is an agreed contract between both parties as to the level of the rent. The landlord does not consider there is any basis to challenge the rent. The landlord produced photographs of the tenancy taken before the tenancy commenced, and also a rent appraisal from Barfoot & Thompson.
The tenant submitted that I should be cautious in accepting the rent appraisal as the landlord works for Barfoot & Thompson. Further the tenant said that the house has deteriorated since the start of the tenancy. The tenant submits that the properties that referred to by the Barfoot & Thompson’s report are high end properties. The tenant disputes that the house photographs are consistent with the premises they rented.
The landlord disputes there are enduring faults with the premises that would lower the rent, other than some painting being needed. The landlord notes that when there has been flooding or water leaks from extraordinary weather events, they have been fast in getting those problems addressed.
The landlord confirmed that the tenant could request to leave the tenancy early if the tenant wished to, as the landlord would be very open to ending the fixed term early.
The tenant submitted that a sound rent valuation could not be undertaken without first looking at the house. Analysis
The relevant provision of the Residential Tenancies Act 1986 (RTA) that relate to market rent is section 25. That provision holds: Market rent (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. (2) .... (2)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. (4) An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order.
Accordingly then, the Tribunal may order a reduction of the rent to an amount in line with market rent if the rent for the tenancy exceeds the market rent by a substantial amount. ‘Market rent’ is the rent that, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay taking into consideration the general level or rents for comparable tenancies or comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The question I must determine is firstly what a market rate of rent would be for these premises, secondly whether the rent is substantially above the market rate, and if so, thirdly, what the rent should be?
In this case the landlord submitted that the rent should not be disturbed, because the tenants had agreed and contracted on the respective rates. The problem for the landlord however, is that the RTA expressly allows the Tribunal to fix a market rent rate, when the existing rent is substantially higher than a market rate determined. Of course in every tenancy the rent is set by way of agreement and contracting, and that is not a preclusion the Tribunal’s jurisdiction to evaluate and set a market rate.
In this case the tenants position is that a market rate would be more likely rental around the $1,000 mark. The landlord’s position is that the current rent of $1,450.00 is a market rate, if anything a rate below a market level.
The tenant relies on Trademe rental listings. The tenant submits that the properties is identified in those listings are materially similar to the Tenancy he rents, and are well below what he is charged.
The landlord has also provided Trademe listings which she says show comparable premises, and the landlord has also provided a range of photographs of the tenancy dwelling.
In addition the landlord has provided two rent appraisals provided by Barfoot & Thompson, where Juan Xin assesses the premises at $1,500 - $1,600 per week, and Adrian Dermer $1,550 - $1,650.
The tenant submitted that little weight should be placed on those rental assessment, because Ms He works for Barfoot & Thompson. While it is possible that has created some influence, there is insufficient evidence to establish that is likely to be the situation. I am aware that Real Estate agency is large, and I accept Ms He’s evidence that she did not know the people who provided the assessments.
There is also the generic bond data information, which suggests that upper quartile premises in Remuera, would carry a market rent of $1,300.00. 1
The tenant submitted that bond data is based on four bedroom houses, but he states that one of the bedrooms would be better classed as a rumpus room. I have not seen any photographs of that room myself to discounted as being a bedroom, and to that extent there is insufficient evidence to show that it could not be used as a bedroom.
When I step back and consider the available evidence, and in particular the photographs that both parties have provided, comparing those photographs to the Trademe listings, I am not persuaded that the rent that is currently charged for these premises would not be a market rate. That is also taking into account that I accept the independent rent assessments, which provide a more specific assessment of what rental a willing tenant and landlord would agree to.
The rental I accept is high, and it does not sit comfortably with the tenancy bond data, but there are some features of this house which may explain that, including a swimming pool, and that the dwelling is of a decent size.
Finding as I do that the current rent charged would be a market rent, there will be no basis upon which the Tribunal could interfere with that agreed rental level, so this application is dismissed. Reimbursement for repairs
The tenant seeks reimbursement for repair costs of: a. Water removal and carpet cleaning associated with flooding. b. Compensation for repairing fence. c. Kitchen hinge
The landlord initially states she agreed to pay the 15 May 2023 invoice, but then disputed that charge as been too high.
The tenant also claims for repairs in fixing the fence. The tenant says that the fence was repaired over 8 hours and he claims $25 per hour.
The tenant states that the wooden fence was broken when the landlord was undertaking trimming of the trees around the fence. The tenant says the landlord undertook to repair the fence, but the landlords builder never turned up.
The landlord disputes this claim on the basis that tree work is needed in order to property address the issue around the fence, but the tenant has refused to 1 This generic assessment is based on a four bedroom house, and 465 active bonds held by the Bond Centre, between 1 April 2023 and 30 September 2023. allow the tree to be removed, so until the tree work is completed then it is not reasonable to undertake the fence repair. The landlord disputes there are privacy issues, and she considers that the claim is excessive for any work needed to repair the fence.
The tenant states that in 2022 he replaced a hinge to a kitchen cupboard, and the cost was around $50.00, for which he seeks compensation.
The landlord states that in fact she paid this hinge cost to the tenant, but thought it was prior to last year. Analysis
As noted above, the obligation to maintain the premises sits with the landlord, so not surprisingly the landlord is responsible for paying for repair costs, not the tenant.
But in circumstances where a tenant does undertake repairs, the extent to which the landlord is obligated to pay the tenant for those repairs is limited. That is because of section 45(1)(d) which relates to the landlords responsibilities, and holds: [The landlord shall] compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i) the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii) the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so
In my assessment the tenants claims for the water removal and carpet cleaning would fall into that category. I accept this work was undertaken pursuant to flooding, which would be the landlords responsibility to address, but given the seriousness, and urgency of the matter, and the potential for serious property damage, the tenant acted on behalf of the landlord’s interest, and getting that work done. The landlord questioned whether some of the work was excessive, but I am not persuaded that has been proven. I am sure that the tenant acted in good faith, and it would be entirely wrong to quibble about the costs that the tenant has incurred, noting of course that the tenant could have done nothing, and that would have been against the interests of the landlord, and potentially caused more property damage.
The tenant produced two invoices both from Rug Gallery Limited as follows: a. 10 February 2023, $402.50; and b. 15 May 2023, $747.50
Both invoices record the charge was for water removal, and the invoice on 15 May was also for carpet cleaning. Both amounts are ordered to be paid by the landlord in full.
However I decline to make any order for costs in relation to repairs for the fence, and hinge (although acknowledge the landlord believes the hinge has been compensated for already), because I do not accept that either repair was necessary to address circumstances that were “likely” to cause injury to persons or property, or which would otherwise be serious and urgent.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case both parties have applied for name suppression, but I cannot conclude that either party has been wholly or substantially successful in the proceeding, and therefore name suppression has declined.

Tenancy Tribunal case 4661232 — Tenancy dispute at 27 St Vincent Avenue, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 4661232 — Tenancy dispute at 27 St Vincent Avenue, Remuera, Auckland 1050

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions