What was the outcome of Tenancy Tribunal case 4737069?

The tribunal order states: The Bond Centre is to pay the bond of $2,000.00 (5674028-001) to

How much money was awarded in case 4737069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4737069?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages, Compensation.

Where can I read the official tribunal order for case 4737069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9954300-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4737069?

The tribunal order states: The Bond Centre is to pay the bond of $2,000.00 (5674028-001) to

How much money was awarded in case 4737069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4737069?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages, Compensation.

Where can I read the official tribunal order for case 4737069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9954300-Tenancy_Tribunal_Order.pdf.

ORDER Tenancy Tribunal Case 4737069 — State of repair

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Reasons

Both parties attended the hearing. Background

The parties entered into a 6 month fixed term tenancy from 9 April 2023 to 9 October 2023.

Subsequently, they agreed that the tenancy would end on 19 August 2023.

On Tuesday 15 August 2023 the tenants txt the landlord, "Hi Erica the house is empty now if you want to do a final inspection so we can get our bond refund sorted. Key is in the box. Let me know if there's any questions."

The landlord and Ms Franken agreed to meet on Saturday 19th at 11:00 for the final inspection.

On Wednesday 16 August 2023 the tenants txt the landlord, "Shoot I forgot to tell you can you please organise a plumber for the end toilet as it got blocked before we left and Mark couldn’t unblock it"

The landlord confirmed later that day, "Hi Tara, just to let you know, the plumber will be coming in on Friday [18 August] to unblock the toilet. I've also asked him to let me know the cause of the blockage." The tenants replied, "That's fine, he can help himself. The house has been empty since the weekend. Keys in the box. Thank you so much."

On that Friday, the tenant noticed that the windows and doors in the premises were all open and contacted the landlord to let her know. The landlord confirmed that she had taken the morning off to be at the premises when the plumber came and had left the windows open to air the premises following clearing of the toilet. The landlord informed the tenant that the plumber had said, "No technical issues with diagnosis being make up wipes, sanitary products and excessive toilet paper clogging the pipe.” The tenants' response was, "Very strange. It did it several times we were there and the girls don't use makeup wipes or tampons as they're too young.”

The landlord told the tenant that she believed the tenants' dogs had caused scratches on the wooden floors for which the landlord wanted compensation from the bond.

Ms Franken decided to visit the premises to see for herself and found a number of boxes in the premises and what she thought was washing done by the landlord left to dry. Ms Franken says she was quite disturbed by that.

The landlord says that there were items in the premises that the tenants did not want to use, so before the tenancy began, she put them into storage. On 18 August 2023 when she had been at the premises with the plumber, she decided to bring some boxes back from storage, unpacked them and aired some of the contents. Claims

The landlord had initially sought compensation for the scratches on the floor but today confirmed that claim is not being pursued. The landlord's sole claim is compensation for the plumber's charge to unblock the toilet ($499.86).

The tenants claim: a. that the landlord’s entry into the premises on 18 August 2023 was an unlawful entry for which exemplary damages should be awarded; b. exemplary damages for what they say was the landlord's failure to ensure that the premises complied with Healthy Home standards, particularly in relation to heating and ventilation; and c. compensation for what they say is the breach of their right to quiet enjoyment of the premises, due to construction work being carried out on an adjoining property. Toilet Blockage

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

The landlord’s evidence is that the plumber told her the blockage was caused by makeup, wipes, sanitary products and excessive toilet paper clogging the pipe. The landlord says that the toilet is located between the two bedrooms occupied by the tenants' daughters. She invites me to infer that reinforces the likelihood of the cause being as described by the plumber.

For their part, the tenants say that their daughters are too young to use the sanitary products described. They also say that from the beginning of the tenancy they brought to the landlord's attention concerns about drainage issues at the premises which they believe may be linked to the cause of this toilet blocking. Their evidence is that during the tenancy they unblocked that toilet a couple of times using a plunger, but did not consider it enough of an issue to trouble the landlord with.

The landlord says that the toilet is relatively newly installed with new piping and could not have been affected by any issues with the drainage further down the system.

As this is the landlord's claim, the onus is on her to provide evidence to prove on the balance of probabilities that the cause of the blockage was more than fair wear and tear, for example by natural blockages, through roots etc in the drainage pipes or accumulation of material in the drain prior to this tenancy.

Especially because the tenants had noted other issues with drains on the premises and had immediately challenged the plumber's diagnosis, in my view, it was really incumbent on the landlord to provide clear evidence of the cause. As owner of the property the landlord is uniquely placed to be able to provide that evidence and could quite easily have done so.

Absent that evidence, I do not find that the landlord has met the proof threshold to persuade me that the tenants were responsible for the blockage. Unlawful entry.

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.

As noted, the parties had arranged a final inspection on Saturday 19 August 2023. I do not read the tenants’ txt on the 15 August 2023 letting the landlord know that they had moved out and that the key was in the letterbox, as inviting the landlord to enter the premises do an inspection, or to use, before then.

The Landlord gave proper notice of the plumber's entry on 15 August 2023. The notice did not specifically state that the landlord would be there with the plumber. Though the tenants should have been told, I do not consider that the landlord's attendance with a plumber, whose visit had been properly notified, of itself amounted to an unlawful entry for which exemplary damages should be awarded.

However, the landlord's continuing presence in the premises and beginning to arrange the premises for her own future use and inspecting at least part of the premises before the agreed joint inspection, went well beyond the purpose given for the entry and became unlawful.

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.

In considering whether an unlawful act was intentional, the relevant question is whether the act itself was intentional, not there was an intention to act unlawfully.

The landlord must have been aware that remaining in the premises for those purposes went well beyond the reason given to the tenants for her being there. The landlord having undertaken an inspection of the premises in the tenant's absence, and raising issues she had found, effectively undercut the joint final inspection agreed for the following day.

I accept the landlord's evidence that she meant no harm and was simply using the convenience of her being at the premises, which the tenants had vacated, to start the process of readying it for its next use. Ms Franken's evidence is that she was disturbed and upset to visit the premises she was still renting to find the landlord having begun moving things in.

In assessing the effect of the landlord's unlawful act, I must also take into account that the tenants had already vacated, although they were still entitled to possession and use of the premises. None of their personal effects remained there and the final inspection was to take place the next day. That, in my view, mitigates the consequences of the landlord’s actions.

The public interest requires that landlords are respectful of tenants right to private and uninterrupted occupation of premises they are paying rent for and only enter the premises in accordance with a legal notice.

In those circumstances, I consider it just to make an award of exemplary damages but the mitigating circumstances should place the amount toward the lower end of the scale. Maintenance / Repair/ Healthy Homes compliance

The tenants claim that the landlord has breached her obligations under section 45 of the Residential Tenancies Act 1986 maintain the premises in a reasonable state of repair and comply with healthy homes standards.

The basis of that claim is that the premises were cold and difficult to heat and that draughts in a rear bedroom meant it could not be occupied by the daughter whose bedroom it was.

The premises are provided with an open fire, heat pump and HRV type heat circulation system. The landlord acknowledges that the premises can be cold and gave some advice to the tenants about how she found it best to keep the premises heated (although that was difficult for the tenants because their work commitments made it hard to keep the open fire going).

As this is a general tenancy beginning on 9 April 2023, the date by which the premises were required to comply with Healthy Homes standards was 120 days after the. commencement date - 7 August 2023, shortly before the tenancy ended. (see Schedule 1 - Residential Tenancies (Healthy Homes Standards) Regulations 2019).

The landlord has not had a Healthy Homes compliance assessment completed for the premises. There is, however, no evidence that proves either that the landlord failed to ensure the premises were in a reasonable state of repair, or that at 7 August 2023, the premises failed to comply with healthy homes standards. As this the tenants claim the onus is on them to provide evidence to support their claim. The evidence available does not meet that threshold and this claim is declined. Quiet enjoyment

Close to the side of the premises, opposite the main bedroom and entry door, is a high retaining wall. On top of that wall is a fence which encloses a parking area used by the neighbouring school. Before the tenancy began, the landlord was aware from discussions with the school, that resealing work in that parking area would be done during the tenancy. She believed it would be of a relatively minor nature, with minimal impact on the tenants.

The tenants say that they were confronted with early morning jackhammers and other noisy mechanical equipment. On 12 April 2023 the tenants contacted the landlord with their concerns about the noise. Other communications with the landlord repeating those concerns, including a short video, were sent to the landlord on 26 April, 1 May and 3 July.

The tenants’ evidence is that there was a period of perhaps two weeks where the work was intensive and intrusive, then there was quite a long period where further Investigative work was carried out, which meant that there were. workman on site, but no noisy machinery being used.

On being provided the direct evidence about the extent of the intrusion. The landlord contacted the school and suggested that the tenants call noise control but was not really sure what she was able to do about the situation.

The evidence persuades me that the tenants' use and quiet enjoyment of the premises was significantly disrupted by the building work that was carried on. The question is whether that interference with their quiet enjoyment of the premises resulted from a breach of the landlord’s obligations and something that the landlord should compensate the tenants for.

Section 38 says:"(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant."

In my view, if the work was being out on the landlord’s property, the resulting disturbance would necessarily have been created by persons there with the landlord’s permission. Similarly, if work is carried out on an adjoining property but it is work the landlord benefits from - for example if here the work had been undertaken to strengthen the retaining wall protecting the landlord's property, it would be inequitable for the landlord to benefit from the work being carried out while the tenants incurred the cost, in terms of having to put up with the disturbance from the work.

If, on the other hand, the tenants were disrupted by work carried out nearby but that was really nothing to do with the landlord, I see no basis for compensation to be awarded.

The landlord says the work was simply to resurface the school car park and rebuild the fence on school property. The tenants’ description of the work includes addition of concrete nibbing and the insertion of rods into the top of the retaining wall, presumably to give it additional strength - from which the landlord’s property will benefit. The tenants understand that there was a concern about subsidence, which is consistent with the landlord’s evidence about conversations with the school and its lawyers.

The evidence, however, does not prove with any certainty the nature of the work, whether it met an obligation the landlord had in terms of boundary fencing or was necessary to protect the landlord’s property. As this is the tenants claim it is for them to provide the evidence necessary to prove it, on balance. I did not find the claim proved

I accept the landlord’s evidence that she was unaware of the extent of the work that the school intended to carry out or how it would impact the tenants. The evidence suggests genuine surprise and dismay when the tenants showed her how noisy and disturbing it actually was. I find that without that awareness, the landlord was not in breach of an obligation to forewarn the tenants about the upcoming work before the tenancy started.

As the tenants have partially succeeded with part of their claim, I reimburse their filing fee.