What was the outcome of Tenancy Tribunal case 4685497?

The tribunal order states: The Bond Centre is to pay the bond of $3,600.00 (6306617-009) immediately

How much money was awarded in case 4685497?

Property Damage: $450.00 awarded to tenant; Rent Arrears: $1,800.00 awarded to landlord; Water Rates: $522.18 awarded to landlord

What type of tenancy dispute was case 4685497?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4685497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10099900-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4685497?

The tribunal order states: The Bond Centre is to pay the bond of $3,600.00 (6306617-009) immediately

How much money was awarded in case 4685497?

Property Damage: $450.00 awarded to tenant; Rent Arrears: $1,800.00 awarded to landlord; Water Rates: $522.18 awarded to landlord

What type of tenancy dispute was case 4685497?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4685497?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10099900-Tribunal_Order.pdf.

104 Arion Road, Takanini, Takanini 2112 Tenancy Tribunal Case 4685497 — Rent arrears

Claims and awards in Tenancy Tribunal application 4685497 — net $1,872.18 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 5 September 2023	$1,800.00		Rent arrears to 5 September 2023
Water rates	$522.18		Water rates
Exemplary damages: section 45		$450.00	section 45
Total award	$2,322.18	$450.00
Net award	$1,872.18
Total payable by Tenant to Landlord	$1,872.18

Claims and awards in Tenancy Tribunal application 4685497 — net $1,872.18 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 5 September 2023	$1,800.00		Rent arrears to 5 September 2023
Water rates	$522.18		Water rates
Exemplary damages: section 45		$450.00	section 45
Total award	$2,322.18	$450.00
Net award	$1,872.18
Total payable by Tenant to Landlord	$1,872.18

Order

The Bond Centre is to pay the bond of $3,600.00 (6306617-009) immediately apportioned as follows: Premium Realty Limited - As Agent For Shobha Advani: $1,872.18 Bipin Thapa, Chad Savage-Price, Daniel Peverley and Tracy Margarete Savage: $1,727.82
The term of the fixed-term tenancy of Bipin Thapa, Chad Savage-Price, Daniel Peverley and Tracy Margarete Savage at 104 Arion Road, Takanini, Takanini 2112 is reduced and now ends on 5 September 2023.

Reasons

Both parties attended the hearing.
There was an issue raised in relation to whether all four tenants were parties to these proceedings. I reach the conclusion that all four tenants are parties and remain subject to this order for the following reasons; a) There was no amendment or variation to the Tenancy Agreement signed by the four tenants on 29 May 2023 or other documentation agreeing to release two of the tenants; and b) The bond at the Bond Centre is held on behalf of all four tenants.
In reaching this decision I have taken account of the email from Bipin Thapa to the landlord dated 13 July 2023 and the letter dated 13 July 2023 written by the landlord to the Ministry of Social Development.
While two of the tenants moved out in July 2023, they remain liable to their obligations under the fixed term tenancy. I note that there was a request from Mr Thapa to be able to give four weeks’ notice to leave but a tenant cannot give notice to end a fixed term tenancy. I also note that the landlord provided a letter to Daniel Peverley for the Ministry of Social Development which states that his share of the rent is $450.00 which is half the weekly rent, suggesting that there were only two tenants at that date. However, I do not accept this letter is evidence that there was agreement that only two tenants would remain liable under the tenancy agreement. Landlord application
The landlord has applied for termination due to abandonment, rent arrears and water rates. The claim in relation to compensation for locks was withdrawn at the hearing. Termination
The tenant vacated the tenancy on 26 August 2023. As the tenant has left the tenancy and this has been accepted by the landlord an order terminating the tenancy is not necessary. That claim is dismissed. Rent arrears
The landlord has applied for rent arrears and has provided a rent summary seeking rent arrears to 20 September 2023. The landlord relies on that date as the end of the tenancy because that is the date before settlement following the sale of the premises.
On 10 August 2023 the landlord sent an email to the tenant advising that the premises had been placed on the market for sale which is required by section 47 Residential Tenancies Act 1986.
The email also advised the tenant that the real estate agent would be carrying out viewings and asked for the house to be presentable for open homes. I note that section 48(3)(b) of the Act states that with the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises to prospective purchasers. The email from the landlord does not mention that there must be prior consent and instead says that reasonable access cannot be withheld. The Act (at section 48(3A)) states that the tenant may not withhold his or her consent unreasonably.
The landlord did not offer of any rent rebate for the inconvenience. The tenant advised that there were open homes held every Saturday and Sunday from 10 August until she left on 26 August.
The premises sold on 5 September 2023 and settlement took place on 22 September 2023.
At the hearing the landlord advised that the plan was to give the tenant 90 days’ notice to vacate due to the sale. I pointed out to the landlord that section 51(2)(a) of the Act relates to periodic tenancies whereas this tenancy was fixed until 27 November 2023.
It seems that the landlord wanted to end the fixed term tenancy early even though the landlord has sent an email to the tenant on 28 August 2023 correctly stating that generally, a landlord or tenant cannot give notice to end a fixed term tenancy early.
For the reasons set out below the tenancy ends on 5 September 2023 and the tenant is liable to rent arrears to that date. Water
At the hearing the landlord produced two water invoices and seeks $522.18. The invoices are addressed to the owners at a Blockhouse Bay address. There is no evidence that these invoices were sent to the tenants.
At the hearing the tenant advised that she had not seen the invoices earlier but acknowledged that they were for water they had used and the tenant agreed to pay the invoices. As there is agreement that amount is ordered. Tenant application
The tenant applied for reduction of the fixed term tenancy, a claim in respect of the Healthy Homes standards and for exemplary damages. Reduction of fixed term tenancy
The tenant has applied for reduction of the fixed-term tenancy due to end on 27 November 2023.
The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.
There has been an unforeseen change in the tenant's circumstances. On 22 August 2023 the tenant sent an email to the landlord asking to be released from the fixed term tenancy. The reason given was due to a change in her health meaning that she could not climb the stairs and therefore was unable to use either the bathroom or the bedroom. She needed a single storey home due to her health condition. The landlord responded by requesting a letter with supporting information.
The tenant sent a further email the following day together with medical records in support of her request.
At the hearing the landlord confirmed that he sent this information to the owners, but they never responded to the request.
The tenant would suffer severe hardship if the term of the tenancy were not reduced. The tenant was not able to use the upstairs of the two-storey premises. The bedroom and bathroom are located upstairs. She needed a single level dwelling due to her health issues. The tenant was sleeping on the couch and travelling to her mother’s home to use the bathroom.
At the hearing the landlord did not produce any evidence that the landlord would suffer hardship. The premises were sold 10 days after the tenant vacated the premises.
I find that the tenant’s hardship would be greater than the landlord’s hardship.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.
I do not consider that an award of compensation to the landlord is warranted in the circumstances. The tenant had cooperated with the landlord’s request to accommodate viewings for prospective purchasers and there is no suggestion that the premises were not presentable for the open homes. The premises were sold, and the tenant provided the landlord with vacant possession which is what the landlord would be seeking soon after the tenant vacated in any event.
I consider that the fixed term tenancy should be reduced, and the end date is 5 September 2023 being the date that the premises were sold. Healthy Homes standards
The tenant claims in respect of the Healthy Homes standards.
The premises did not have a heat pump at the beginning of the tenancy, but this was installed on 22 July 2023.
At the hearing the tenant did not seek compensation in relation to the heating. She did however refer to the smoke alarms which were not compliant at the commencement of the tenancy. That issue is considered below. Exemplary damages
Bipin Thapa, Chad Savage-Price, Daniel Peverley and Tracy Margarete Savage 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 all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
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 carry out repairs to the hot water cylinder within a reasonable timeframe and failed to comply with the regulations applying to smoke alarms. 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.
On the morning of Saturday 5 August 2023, the tenant contacted the landlord to advise that the hot water cylinder was leaking. The tenant had to turn off the water going to the hot water cylinder. That meant that the tenant had no hot water until the leak was fixed.
The landlord produced an email from the contractor which confirms that they were advised of the leak on 5 August 2023 but as it was a minor leak and staff were not available it was not fixed until Tuesday 8 August 2023.
That meant that the tenant was without hot water for more than three days. This would have been a considerable inconvenience to the tenant. No compensation was offered to the tenant for this loss of amenity.
When the tenancy commenced there is evidence of one smoke alarm in the premises. The section of the tenancy agreement concerning smoke alarms has not been completed other than to state that there is one smoke alarm.
At the hearing the landlord stated that there were two smoke alarms at the commencement, but no evidence was produced to support this. The Healthy Homes report dated 9 June 2023 only refers to one smoke alarm. On the timeline produced by the landlord it states that the tenant sent an email following up to install a smoke alarm at ground floor. That email was sent on 18 July 2023. The timeline states that the landlord came to the house on 26 July 2023 to install the additional smoke alarm in the dining area.
This suggests that there was only one smoke alarm at commencement of the tenancy. In addition, there is a sleeping area above the garage which is part of the tenancy but not connected to the main home. This sleeping space should also have a smoke alarm.
The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 state that there must be at least one qualifying smoke alarm installed in the sleeping space or within 3 metres of the entrance to the sleeping space. It also states that there must be at least 1 qualifying smoke alarm installed on the storey or level in the habitable space.
As there are two storeys to these premises there should be one smoke alarm on each storey with the upstairs alarm being within 3 metres of the entrance to the sleeping space. In addition, there should be one smoke alarm in the sleeping space above the garage. To comply with the regulations these premises should have three qualifying smoke alarms.
On the evidence these premises have not complied with the regulations.
Given the landlord’s failure to comply in respect of the hot water cylinder repair and the smoke alarm installation I consider that the tenant should be awarded exemplary damages of $450.00.
The bond is released to the parties in accordance with the awards made.
As both parties have had some success with their application, I make no award for reimbursement of the filing fee.

Tenancy Tribunal case 4685497 — Rent arrears at 104 Arion Road, Takanini, Takanini 2112

At a glance

Tenancy Tribunal case 4685497 — Rent arrears at 104 Arion Road, Takanini, Takanini 2112

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions