What was the outcome of Tenancy Tribunal case 4740231?

The tribunal order states: Robyn Turner For M H Realty Limited Trading as Bayleys Acting for The Owner

How much money was awarded in case 4740231?

Failure To Provide Balcony In Reason…: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4740231?

The dispute type was not classified.

Where can I read the official tribunal order for case 4740231?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10399523-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4740231?

The tribunal order states: Robyn Turner For M H Realty Limited Trading as Bayleys Acting for The Owner

How much money was awarded in case 4740231?

Failure To Provide Balcony In Reason…: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4740231?

The dispute type was not classified.

Where can I read the official tribunal order for case 4740231?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10399523-Tenancy_Tribunal_Order.pdf.

2A Cobham Lane, Whitianga, Whitianga 3510 Tenancy Tribunal Case 4740231 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4740231 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Failure to provide balcony in reasonable condition	$500.00	Failure to provide balcony in reasonable condition
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

The tenancy in this matter commenced on 19 March 2021 and end on 20 July 2023 after the tenant gave notice. On 15 November 2023, the tenant filed an application alleging that the landlord had failed to meet their obligations. There have been several rescheduling events delaying the matter. On 20 March 2024, the matter was set down for a face-to-face hearing before me. On 22 May 2024, there is record that the tenant advised the Registry that they were unable to travel to the Courthouse and sought a telephone hearing; however, the mode of hearing was not changed. This morning neither party attended in person. A call was placed to the tenant and the landlord, and both parties answered. The tenant stated that they had not been advised if the matter would proceed by telephone, while the landlord stated they had received advice that the hearing had been cancelled. Both parties were, however, keen to procced with the matter by telephone.

On 15 November 2023, the tenant filed an application alleging that the landlord had failed to comply with Healthy Homes Standards relating to draught stopping and drainage and had failed to provide the property in a reasonable state of repair.

The Healthy Homes Standards compliance date for this tenancy is 01 July 2025, when the landlord must ensure that the property complies. During the tenancy the landlord must therefore comply with the Housing Improvement Regulations 1947 (“HIR”) which set out the minimum standards for residential properties.

Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.

The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.

Failing to comply with section 45(1)(b) and (c) is a breach for which, if loss has occurred, compensatory damages may be awarded. A breach is also an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A of the Residential Tenancies Act 1986 (The “Act”).

In this case, the tenant claims that the landlord has failed to comply with HIR Regulation 14, which provides that a property, subject to local authority requirements, has an efficient drainage system for the removal of storm water, surface water and ground water, and HIR Regulation 17, which provides that properties should be weatherproof. The failure to maintain the property under section 45(1)(b), this concerns one of two small balconies.

The onus of proving a claim will rest with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Act. Weather tightness

The property has two stories. This claim concerns an aluminium ranchslider that opens onto a small balcony. The tenant has taken a photograph showing that a horizontal portion has come away from a vertical portion, creating a small gap. They cannot recall when they took the photograph but state that it was toward the end of the tenancy. The tenant state that raised the gap verbally with the owner of the property, who said that they would fix the gap but never did. The landlord states that they have no record of the matter being raised and that the first they were aware of the matter was when the application was filed. The landlord states that there are no texts, emails, or notices from the tenant, which the tenant accepts. The landlord states that an agent of the landlord conducted regular property inspections and that there is no record of the matter being raised or noted.

Having established that there is damage, the tenant must establish that they advised the landlord. The Tribunal may also find that the damage concerned would have been obvious to a reasonably prudent landlord during an inspection.

While there is a small gap shown in the photographs, I am not satisfied that the matter was raised with the landlord, or that it would have been clearly evident during an inspection. On that basis, I am not satisfied that the landlord has failed to meet their obligations to respond appropriately. The claim is dismissed. Drainage

The tenant claims that the storm water system at the property is inefficient and that when it rained, water would pool at the front door and make its way inside. The tenant states that they verbally raised the matter on a number of occasions with the landlord, but nothing was done. The tenant could not recall exactly how many times the flooding had occurred but stated that it was numerous. The tenant claims that the storm water system at the property is inefficient.

The landlord states that the matter was raised by the tenant just the once and that they visited the property. The landlord states that while water tended to pool around the front of the property there was no evidence that it was the result of an inefficient drainage system. The landlord states that at the time the area was the subject a series of ongoing significant weather events. During the period several homes in the area had to been seriously affected, and even the most efficient drainage system would have been challenged. The landlord states that there was no evidence of any damage inside the front door, which would be reasonably occurred if, as claimed, water had regularly come inside.

While there are photographs showing water sitting on the ground at the front of the property, there are none showing water reaching a level that it had entered the house. The photographs produced appear to have been taken during heavy rain fall, which is consistent with the landlord’s evidence. Once again there is no documentary evidence of the matter being raised as an ongoing issue. Having considered the evidence, I am not satisfied that the drainage system was defective nor that the landlord has failed to respond when advised. The claim is dismissed. Balcony

There are two small balconies on the second floor. One is described by the landlord as north facing, the other west facing. Both are described by the landlord as being “Juliet” style. The photographs produced show the balconies are small, sufficient for one or two persons. Other than a small chair, there is not enough room for any other furniture. The tenant has produced a photograph of one of the balconies, but it is unclear which one. The photograph shows that there is rotting around the facia board onto which the support posts for the railings are attached. The tenant states that at the start of the tenancy, they were asked not to use to balcony and were told that it would be repaired. During the tenancy, the rent increased. The tenant formed the view that without the full use of the balcony the rent increase was not justified. The tenant states that despite raising it orally, that nothing was done. The tenant states that they were frightened that the balcony may collapse, injuring anyone who may have been underneath at the time.

The only documentary evidence of the matter being raised is in an email after the end of the tenancy. The landlord accepts, however, that the matter had been raised on few occasions, but the tenant appeared to have forgotten what was discussed. The tenant stated that they suffered from a head injury affecting memory. The landlord stated that at the start of the tenancy, they had told the tenants that the owner did not want the small balconies to be used as they were concerned that they might not be safe. There is a ranchslider opening onto the balconies. On each side there are opening windows. The landlord states despite the balconies being out of bounds, the ranchslider remained accessible to provide ventilation.

The landlord stated that they thought it had then been recorded in the tenancy agreement, which it had not. The landlord states that there was no intention repair the balconies, and after the end of the tenancy, despite there being no risk of collapse or such structural failure, that one of the balconies was removed. A photograph has been produced showing the balcony above the internal garages removed.

I accept that the landlord advised that the balconies were not to be used during the tenancy. I also accept the landlord’s evidence that at the material time there was no intention to repair the balconies. Additionally, I accept there is insufficient evidence that the balconies were at risk of falling off the side of the property. However, the rotting facia board, which supports the glass railing, clearly presents a health and safety issue. The photographs show that the tenant has placed sofa back onto the balcony to discourage access.

What concerns the Tribunal is that having been advised not to use the balcony for safety reasons, the ranch sliders were not then made inoperable. This means that someone unaware of the defect may have inadvertently used the balcony, which could have resulted in injury if they leaned against the railing.

Section 45(1)(b) of the Act provides that a landlord must provide and maintain the property in a reasonable state of repair. Section 11 of the Act states that a tenant cannot agree to release the landlord from this obligation, unless expressly permitted by the Act, or in the circumstances the inconsistency should be permitted.

In this case ,I find that by failing to take steps to ensure the balconies could not be accessed by the tenant, or someone at the property with the tenant’s permission, the landlord has failed to meet their obligations under section 45(1)(b) of the Act to provide the property in a reasonable state of repair, and that the failure to do so posed a risk to the health and safety of the occupants. Despite agreeing not to access the balcony, I am not satisfied that the tenant was able to excuse the landlord for failing to properly secure the doors leading to the balcony. In this case although the landlord has breached their obligations, there has been no actual loss suffered by the tenant, and on that basis, I award the tenant nominal damages of $500.00. Costs

As the tenant has been partly successful the Tribunal awards reimbursement of the filing fee. Name suppression

Neither party seeks name suppression, and no orders are made.

Reasons

Claims and awards in Tenancy Tribunal application 4740231 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Failure to provide balcony in reasonable condition	$500.00	Failure to provide balcony in reasonable condition
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

As the tenant has been partly successful the Tribunal awards reimbursement of the filing fee. Name suppression

Neither party seeks name suppression, and no orders are made.

Tenancy Tribunal case 4740231 — Tenancy dispute at 2A Cobham Lane, Whitianga, Whitianga 3510

At a glance

Tenancy Tribunal case 4740231 — Tenancy dispute at 2A Cobham Lane, Whitianga, Whitianga 3510

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