What was the outcome of Tenancy Tribunal case 4708872?

The tribunal order states: The tenant’s applications are dismissed.

How much money was awarded in case 4708872?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4708872?

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

Where can I read the official tribunal order for case 4708872?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11015804-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4708872?

The tribunal order states: The tenant’s applications are dismissed.

How much money was awarded in case 4708872?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4708872?

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

Where can I read the official tribunal order for case 4708872?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11015804-Tribunal_Order.pdf.

Unit/Flat 1, 1A Picton Street, Freemans Bay, Auckland 1011 Tenancy Tribunal Case 4708872 — Healthy homes

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Reasons

Both parties attended the hearing. The tenant via teleconference from Mexico. A Spanish speaking interpreter was in the hearing room to assist the tenant. The landlords were both present in the hearing room.

This is a tenant application.

See my Order dated 12 July 2024 for the history of this matter.

The hearing commenced at 9.30am with all parties present. Prior to this hearing I had determined that the issues from the 407 pages of documents sent by the parties were, that the landlord charged excessive market rent over a 10-year period, and that the rent was raised excessively during the tenancy. Furthermore, that there was no heater provided during the tenancy. The tenant sought compensation from the landlord for breach of the Residential Tenancies Act 1986 (“RTA”). Exceeding Jurisdiction of Tenancy Tribunal:

The morning of the hearing the tenant filed further documents with an amended claim for compensation that totalled $195,390.00.

The tenant was advised that the Tenancy Tribunal had only the jurisdiction for a maximum claim of $100,000.00 and that if he seeks to claim more than that he could take him claim to the District Court.

The tenant wanted to continue with the hearing in the Tenancy Tribunal and not pursue the District Court. Interpreter:

At the start of the hearing, I asked the tenant if he required all discussions to be translated or just what he wanted help with. The tenant chose to speak for himself, and occasionally refer to the interpreter. Tenant set out claims:

The tenant was given a lengthy uninterrupted period to tell the Tribunal what his claim was about. After long dissertations about grievances outside the jurisdiction of the Tribunal, I asked him to address the issues that I needed to determine in the hearing.

At this point, the tenant accused me of being, racist, biased and that I had a tone of frustration in my voice.

However, from the tenants’ comments at the hearing and the vast documents provided, I determined that his issues were: - Failure to maintain the property. -Rent exceeding the market rent. -Failure to be provided with heating. -Landlord not appointing an agent when outside of the country for more than 21 days. Standard and onus of proving a claim:

In any claim brought before the Tribunal, the onus of proving any matter falls on the party bringing the claim. If the claim is brought by the tenant, then the burden or job of proving the claim falls on the tenant.

In this case the job of proving the claim is on the tenant.

The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities.” The point where I accept that it is more likely than not that their version of events is correct. Early termination of the teleconference:

Before discussions of all these claims could be completed, I terminated the teleconference due to the extreme behaviour of the tenant. The hearing had been going for several hours before I needed to terminate the call, after warning the tenant on four occasions to focus on the issues and desist from his behaviour.

However, I am satisfied that I have enough evidence, orally and in 407 pages of documentary evidence from the parties, to make decisions based on the following claims. Failure to maintain:

I have not been provided with any information from the tenant about his claim for failure to maintain the property. I repeatedly asked the tenant during the hearing to tell me about this claim, which he refused. I am dismissing this claim for lack of any proof. Landlord not appointing agent s16A (1) Residential Tenancies Act 1986, (RTA)

Arturo Pelayo claims the landlord has been overseas for longer than the Act permits without appointing an agent.

A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.

The tenant has said the landlord was out of New Zealand for more than 21 days but provided no details to support this claim. The landlord said they were only ever out of the country once in the 10-year period and were available 24/7 on the phone and emails.

As it is the tenant making the application, it is for him to prove his claim.

I do not find the tenant has proven his claim and so I dismiss this claim. Market Rent s25 RTA

The tenant says that the landlord charged rent which is above market rent and seeks to recover $94,640.00 in rent payments.

Section 25 of the Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal may order a reduction in the rent to an amount in line with market rent if the rent for the tenancy exceeds the market rent by a substantial amount.

The term “market rent” means the amount which a willing landlord might reasonably expect to receive, and a willing tenant reasonably expect to pay. When considering the market rent, notice should be taken of comparable rents at comparable premises in the locality.

The Tribunal cannot decide on what might be a market rent without evidence of comparable rents. The ability of the tenant to pay the rent is not to be considered (see s.25(3) RTA).

The tenant says that the landlord advertised the property as a three-bedroom unit. He said it is in fact a 2-bedroom property, according to his alleged conversations with Chloe Swarbrick, and employees from Auckland City Council. The tenant said that one bedroom was undersized and not compliant with Auckland City Council rules. The tenant was wrong in fact about the size of the bedroom, which was 7.16 square metres.

I have been provided with the specifications of the property and I find this was a three-bedroom property.

The tenant referred to his neighbour in a mirror copy of his unit to show how the rent was exceeding market rents. The neighbour was paying $1300 per week for a serviced unit included meals and laundry, rather than his $720.00 per week (as in 2014). However, I do not consider this is an appropriate like for like comparison.

The landlord said that this apartment has three bedrooms, balcony, city views and 3 car parks as part of the tenancy. Other comparable apartments (in size) do not have 3 carparks and a balcony and/or with superior city views.

The landlords advised that after this tenancy had ended, they relisted the apartment with a Real Estate agent who completed a full rental assessment. The tenant had been paying $800.00 at the end of the tenancy in December 2023 and the new tenants who took over the property in February 2024, are paying $980.00 per week.

The tenant has not provided documented evidence of the actual comparable rents of other properties of this kind. In addition, the evidence given by the landlord of the rental assessment and difference is facilities and rents charged in another apartment in this complex, leads me to find the tenant has not proven his claim. Therefore, I am dismissing the tenants claim that he was paying more than market rent. Landlord excessive rent increases:

The tenant claims that the rent was increased excessively during the tenancy.

The landlord stated that the tenancy started on 12 April 2014 with a weekly rent of $720.00. There were three tenants on the tenancy agreement. Eventually this tenant was the only one remaining on the tenancy agreement.

The landlord advised that the rent increases were as follows: -12 April 2014 - $720.00 -14 October 2017 - $750.00 -21 December 2019 rent was to go to $800.00 but was not increased due to Covid. -2 July 2020 - $800.00

The tenant refused to confirm whether these facts were accepted by him.

The tenancy ended in December 2023. During the 10-year tenancy the rent went up by $80.00.

I do not find that the rent was raised excessively during the tenancy, and I am dismissing the tenants claim. Heating:

Arturo Pelayo claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, the landlord, amongst other things must comply with any relevant enactment in relation to buildings, health, and safety.

The tenant is referring to the lack of heating in the property at the start of the tenancy in 2014.

The tenancy predates the requirement for heating standards under the RTA. The new heating formula for residential properties was introduced in May 2022.

The tenant relies on s6 of the Housing Improvement Regulations 1947, (“HIR”) which states that every living room shall be fitted with a fireplace and chimney or other approved form of heating. The definition of “approved” under the HIR is “approved by the local authority.”

The Auckland City Council rules for domestic heating appliances state that indoor fires that burn gas or liquid fossil fuel can be installed anywhere in Auckland, as they have low emissions of small particulates.

This property has gas ducted heating, and cooking facilities. The landlord offered the tenant at the start of the tenancy, the gas heater that they had used when they lived at the property.

The tenant agreed that he had been offered the gas heater but refused the gas heating as he claimed to have been concerned about Cardon Monoxide poisoning.

He also referred to a conversation he claimed to have had with a staff member at a Bunnings store, who said it was illegal to use a gas heater.

The tenant purchased his own heater and did not ask the landlord for a heater.

The tenant claims $6400.00 for the lack of a heat pump and dehumidifying equipment and costs.

Heat pump cannot be installed on this apartment block because of Body Corp rules, which refuse the retrofitting of heat pump on the exterior of the building. The tenant was offered a legitimate gas heater which he declined.

The tenant has not provided proof to support his claim and I dismiss it. Additional unsupported claims:

The tenant raised additional claims in documents sent through to Tenancy Services on 30 October 2024 relating to being a “de facto property manager” and claiming $78,000.00 in compensation.

Maintenance and cost of equipment in the apartment and seeking $13,500.00 in compensation. Finally interest on the alleged overcharged rent.

The tenant has not raised these before, and I am not considering them as the landlord did not have the opportunity to reply at such short notice and the tenant did not give any evidence of this claim during the hearing.

The tenant makes “recommendations” and seeks the Tribunal to undertake investigations such as: -A full audit -Complete rental history review -Market rate comparison -Property manager role valuation -Equipment and maintenance cost assessment -Trust Governance violations -Consumer protection implications -Fair Trading breaches -The tenant seeks the Tribunal to obtain: -Full financial records -Maintenance history -Communication records -Market comparison

The tenant claims the Tribunal and its staff have “exhibited a pattern of systematic barriers to justice” by: -Not providing assistance with visas and the relocation of himself and his family out of Mexico and back to New Zealand. - Not reconvening the hearing at nighttime (NZ time) to suit his daytime hours in Mexico. - The Tribunal not providing him with specialist assistance for his autism. -Racially and psychologically “profiling him.” -Denying him access to justice.

The tenant refers to the “current security situation in Mexico” and to emphasis his point sends a photo to the Tribunal of a beheaded man.

The Tenancy Tribunal is restricted to operating within the parameters of the Residential Tenancies Act 1986 and does not have the jurisdiction to carry out investigations and provide the assistance claimed by the tenant.

For completeness I have dismiss the tenants claims for exceeding market rent, excessive rent increases and the failure of the landlord to provide a heater and appoint an agent while outside New Zealand after 21 days. Therefore, I do not need to consider compensation, suppression nor filing fee.

The additional claims filed the day before the hearing were not considered.

I have not been provided information regarding the bond so I leave that to the party to address if it has not already been refunded.

Reasons