What was the outcome of Tenancy Tribunal case 4759723?

The tribunal order states: Juliet Milne and Ray White (Real Estate) Limited must pay Christopher Marcus

How much money was awarded in case 4759723?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4759723?

The primary dispute was 14-day notice. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4759723?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10064739-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4759723?

The tribunal order states: Juliet Milne and Ray White (Real Estate) Limited must pay Christopher Marcus

How much money was awarded in case 4759723?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4759723?

The primary dispute was 14-day notice. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4759723?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10064739-Tribunal_Order.pdf.

11 Carlton Road, Pukekohe, Pukekohe 2120 Tenancy Tribunal Case 4759723 — 14-day notice

Order

Juliet Milne and Ray White (Real Estate) Limited must pay Christopher Marcus Kelly and Gillian Kelly $400.00 immediately.

Reasons

Both parties attended the hearings held on the 5 February 2024 and the 11 March 2024.
The tenants have filed two applications, which were both heard.
The tenants first claim was filed in October 2023 they claim: a) That the landlord has failed to maintain the property in particular the DVS system. b) That the landlord has breached the tenant’s quiet enjoyment by coming to the property, and by engaging them in correspondence. c) That the landlord has failed to comply with the Healthy Homes Standards. d) That the landlord has charged the tenant for the water and power not exclusively used by them. e) That the property does not have a second exit, which breaches fire regulations (breach of s45(1)(c)). f) That the landlord has unlawfully entered the property.
Application 4759723 was file on the 7 December 2023. The tenants claim under that application is the at the landlord has failed to give them the Healthy Homes Report when requested. Background.
The tenancy property is a 3-bedroom villa over two levels. In the bottom level is a separate unit, which the landlord accepts is not consented as a separate residential dwelling, up until recently another tenant T lived in the downstairs unit. The tenants live in remainder of the house which is fully consented.
The tenancy began on the 11 June 2023. Prior to the tenancy, the landlord lived in the premises herself from 2014.
The landlord has personally managed the property at the beginning of the tenancy but since the 6 November 2023 she has appointed a property manager to manage the property. The tenancy agreement
The tenants printed off the Tenancy Agreement off the tenancy Services Website and gave it to the landlord.
The tenants say that the landlord has included clauses in the agreement since the tenancy was signed. They say that this is a breach of the RTA.
It appears that the tenancy agreement has changed from the first agreement that was left for the tenants to sign at the beginning of the tenancy.
Neither party can make unilateral changes to the tenancy agreement.
My understanding in reading the correspondence and the tenancy agreement is that it largely accords with the agreements between the parties. Given that the tenancy is likely to end soon (the parties agreed at the hearing that the landlord will allow the tenants to leave earlier than the date in the fixed term agreement) and that the landlord will likely put the house on the market for sale, at the end of the fixed term, then I do not consider it helpful, or an appropriate use of the tribunal’s resources, to go through the tenancy agreement setting out the status of each of the clauses. Failure to Maintain- s45(1)(b) The DVS system
At the beginning of the tenancy the tenancy agreement records that the house is fully compliant with the Heathy Homes Standards. The landlord says that she thought that the house was compliant at the time that she made those statements because she had lived in the house since 2014 and had installed a heat pump and DVS system to ensure that it was warm and dry and regularly maintained gutters and spouting. She said that she was not aware of any defects at the property, and she had a builder friend give her advice. She confirmed that she did not obtain a Healthy Homes Report before she completed the statements in the tenancy agreement.
Landlords have an obligation to maintain a house to a reasonable standard taking into account the age and condition of the house. (Section 45(1)(b) RTA) in addition landlord’s have an obligation to ensure that the house is free from damp (see regulation 15 Housing Improvement Regulations 1947 and section 45 (1)(c) RTA). The landlord also had an obligation in this tenancy to comply with the Healthy Homes Standards.
The Tribunal has previously held that a landlord is not in breach of s45(1)(b) in respect of latent defects, the landlord can only be in breach if the landlord does not take reasonable steps to repair a defect within a reasonable time of it being observed.
The tenant says in her submissions about the DVS: 1/ 19th July is when I contacted Juliet and told her about the power going out. Kinetics came in and checked everything and said it was the air circulation ( I was unaware it was turned off after he left as I was dealing with unpacking etc)... On 7th October Juliet did an inspection I told her the windows (even though I open them every day and the front door were getting mold on them) she asked is the dvs on( that's what she called it) I said I don't know I didn't know a thing about it. I looked at the screen and no lights were on. I said I don't think it's working. She hit the roof. Saying she will get back an electrician and to leave it on from now on... wow I was knocked back, as she had told us she didn't know how to work it.( thought it was something her dead husband put in)she messaged me to tell me a electrician was coming on the 8th could I let him in, I said yes( will attach evidence) 8th October around 10am, Juliet and a young man turned up, I asked did he know how to work the dvs/circulation system and could he show us? He said no he can just fix them. So he came in and so did Juliet ( I was annoyed and she could feel it as she didn't say she was going to be here, it would of been nice of her to of been civil and asked to come in then I would not of had a problem) Electrician went downstairs where fuses etc are then came up to get into the roof and turned it on again. Not long after that I emailed Barbara with a photograph of it flashing "TOO HOT" she told me to turn it off, or if I didn't I would be liable if it broke so I did. 18th January R&E Electrical came in and changed the filter he said that he set the dvs/circulation system to shut down when it got too hot. ( told me the filter needed changing)
The landlord says that she was not aware that her electrician had turned off the DVS on the 19 July 2023 until the 7 October 2023, when she completed a routine inspection.
The landlord says that she had paid her electrician from the work done on the 19 July off the statement, not the invoice (which clearly stated that the electrician had turned the DVS off). The landlord produced evidence of text messages between her and the electrical company which supports her submission.
As the DVS turned off the house would have been prone to damp and mould, and that areas of the home would have been colder.
The landlord had an electrician fix the problem on the 8th October the day after finding out that the DVS had been turned off.
The electrician who attended on the 19 July is the landlord’s agent. As such the landlord is liable for anything her agent does at the house, for example if a tradesperson swore at a tenant, then the landlord might be liable for a breach of the tenant’s quiet enjoyment.
Having considered the evidence I am satisfied that the landlord breached her obligation to maintain the property by her agent disconnecting the DVS and not turning if back on which led to issues of dampness and mould. The tenants contracted to rent a home with a working DVS system, and they did not get one over the coldest and dampest winter months.
A breach of s45(1)(b) can be unlawful act, to which exemplary damages can be awarded. However, an unlawful act must be committed intentionally. As I am satisfied that the landlord was not aware that her own electrician had disconnected the DVS until the 7 October 2023 , then I cannot say that she acted intentionally when failing to maintain the DVS. Whilst I find that the landlord committed a breach of s45(1)(b) I am not satisfied that she has committed an unlawful act.
When a party breaches an obligation under the RTA, then they can be awarded compensation. Compensation restores the party to the position that they would have been in had the breach not occurred.
It can be hard to quantify the amount of compensation that should be given, this is because some of the loss felt by the tenants in this situation, is not purely economic. I have therefore decided to award the tenants $200.00 for this breach, this takes into account that the extra cleaning and concern about the mould growing that the tenants had to ventilate by leaving the windows open in cold months. It also recognises that the tenants did not tell the landlord that the DVS was off, nor did they check the DVS to see if it was working. I am certain that had they advised the landlord of the problem sooner then the landlord would have taken immediate steps to rectify the situation, because when she found out that the DVS had been disconnected, she had a tradesperson to the property the very next day to reconnect it. Other items
I do not consider that the landlord committed any further breaches of s45(1)(b) when items for maintenance and repair were brought to her attention, including ongoing issues with the DVS as she had these investigated and where needed, remedied within a reasonable time frame 1 . I also note that the tenants told the landlord not to come to the property for a period of 14 days from the 11 October and issued a 14 day notice requiring the landlord not to come to the property on the 29 October as well as a trespass notice which stated that the landlord was not to come onto the property. 2 Healthy Homes Standards.
The tenants claim that the landlord has breached section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Christopher Marcus Kelly and Gillian Kelly considers that the landlord has failed to comply with the HHS and in particular the failure to install and moisture barrier, the failure to have compliant drainage and the failure to have sufficient underfloor installation.
The landlord accepts that she has breached s 45(1)(bb) RTA as the house was not compliant with the Healthy Homes Standards as at 10 October which was 120 days after the date the tenancy began.
The landlord says that at the beginning of the tenancy she believed that the home complied with the Healthy Homes Standards. She said in an email dated 29 October.
After the tenants queried the compliance with the Healthy Homes Standards, the landlord realised that she should get a report to confirm the compliance and immediately set about in obtaining one. At this point the tenants told her not to come to the property for a period of 14 days and on the 29 October, they issued the landlord with another 14-day notice prohibiting her from coming to the property. On the 31 October the landlord had to cancel the assessor, she had booked to complete the Healthy Homes report. 1 During this period the landlord checked the heat pump, the tenants complained of issues with the shower head and rose, the electrics, and a noxious plant at the property which the landlord investigated and had fixed. 2 A landlord has a statutory right to enter a premises for the purposes of inspection and repair pursuant to s48 RTA. A tenant cannot prohibit the landlord from entering the premises if the landlord is attending the property for a reason stated in any notice given under s48. If the tenant considers that the nature and extent of any visits to the premises by the landlord are a breach of their quiet enjoyment then they can apply for orders under that s38 RTA (Breach of Quiet enjoyment), but they cannot stop a landlord coming to the property for a lawful purpose if notice has been given. It is an unlawful act for a tenant to refuse entry to a landlord in situations where the landlord is lawfully able to enter. See s48(4)(b) RTA.
On the 20 November 2023 the landlord obtained a Healthy Homes report, there were three standards that were not compliant. •The landlord had not installed a moisture barrier. •The drainage standard was not compliant as guttering on the far top of the roof had to be cleaned out. •There was insufficient underfloor insulation. There is a partial exemption for the underfloor insulation.
The landlord remedied all these issues quickly and the house was fully compliant by the 11 December 2023.
Breaching s45(1)(bb) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The landlord accepted that she breached s45(1)(bb). I find she has 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.
I consider it appropriate and just to award the sum of $200.00 for this breach, whilst this may seem low for a breach of Healthy Homes standards, I have taken into account the following: a) That the landlord was genuine albeit misguided in her belief that the house was compliant and as soon as she realised that it was not, she took steps to rectify the situation. Landlords have an obligation to ensure that their home meets all the requirements of the RTA before they rent out, if they are unsure on what those are, then they should take advice on their obligations. b) The tenants issued 2x 14-day notices (the first of which was issued on the 121 st day after the tenancy began) which hindered the landlord’s ability to obtain a report. c) The whilst the tenants say they complained of the cold to the landlord throughout winter, the correspondence including text messages provided in evidence did not support that position, the tenants asked for a number of items to be repaired from June to 1 October which the landlord attended to quickly. I am satisfied that if the tenants had been concerned about the cold, then they would have drawn this to the landlord’s attention, as they did with other complaints. Healthy Homes report not provided.
Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
The tenants requested a healthy Homes report on or about the 10 October, the following day they gave the landlord a notice preventing her from coming to the property for 14 days, and at the end of that period another 14 day notice. The landlord was unable to get a Healthy Homes report until the 23 November, by which time the tenants had lodged this application. She gave them a copy of the report when it was complete and did not try to hide that the property was non- compliant at that point, she then remedied the issues.
I am satisfied that the landlord has not breached her obligation to give the tenant the Healthy Homes report within 21 days, as she was actively prevented from obtaining the report by the tenants. When she got the report, she provided it to them and set about remedying the breaches. Did the landlord breach the tenants’ quiet enjoyment?
Landlords have a duty to not cause or permit any interference with the tenant’s reasonable peace, comfort, and privacy in the use of the premises (section 38(2) RTA). A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act, and exemplary damages of up to $3,000.00 can apply.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
In order to establish a breach of quiet enjoyment it must be more than a disagreement or a clash of personalities. In the case of Smith & Olmstead v Floris [1994] NZTT Auckland 1404/93 it was said: Quiet enjoyment effectively means the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that however, one must bear in mind that the landlord/tenant relationship is between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type.
The tenants say that the landlord breached their quiet enjoyment in three ways: •That she came to the property too often and sent them too much correspondence. •That she came to the property with tradespeople, which was unnecessary and that she came into the property without being asked. •That she yelled at the tenant on the 7 October whilst doing an inspection about the way she lived in the house causing mould.
Having considered the evidence I am not satisfied that the landlord breached the tenant’s quiet enjoyment of the property because: • The correspondence and the landlord’s attendance at the property was largely in response to the tenant’s complaints about the property. I do not consider them voluminous or out of proportion to the issues that were raised by the tenant. Whilst ongoing issues were frustrating for both parties, that is a fact of life with an older house, sometimes there are periods when items start to fail at the same time, this is usually because they were installed about the same time and might be at the end of their normal lifespan. The RTA provides that tenants must bring items that need maintenance or repair to the landlord’s attention, and the landlord must attend to the maintenance or repair of those items. Both parties were merely complying with their obligations. • Given, that the previous electrician had failed to notify the landlord that he had turned off the DVS, I consider it reasonable that the landlord attended the property with the electrician. The landlord had given notice to the tenants, and each party had a different recollection of how the landlord had entered into the property (did she walk in or knock?). The tenant has failed to meet the evidential burden that it was more likely that the landlord came into the property in a manner that breached the tenant’s quiet enjoyment. • Whilst the landlord confirms that she became upset and concerned when she saw the mould during the inspection, she disputes that she yelled at the tenant. I am unable to determine whether the landlord yelled or not from the evidence. Did the landlord charge the tenants for water, power or internet not exclusively used by them?
The tenants says that the landlord charged them for water, power and internet that was not strictly used by them. They say that the landlord divided the water bill by the number by three during the time there was a tenant in the downstairs flat.
Section 39(3) RTA provides that the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the premises.
When there are more than one set of tenants or users drawing from the same water, power, and internet, it cannot be said that the outgoings are not the tenant’s exclusive use, and the tenant is not strictly liable for those outgoings.
The District Court in Geraghty & Jones v Raui [2019] NZDC 3813 determined that the Tribunal should refer to s 85 RTA in disputes such as these. Section 85 RTA provides: 1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies; (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. 17 There is an argument that whilst a strict legal application of s39(3) means that the tenants should not have to pay any of the outgoings they shared with the downstairs flat, an application of the principle of determining the matter according to the substantial merits and justice of the case, and what is the ‘fair’ result would mean that the tenants should pay their fair share of the outgoings.
I am satisfied that having regard to the substantial merits and justice of the case that it was fair for the landlord and the tenants to divide the waterpower and internet bills between three over the time that the third tenant (T) was in occupation of the downstairs flat. To do otherwise would mean that the tenants would have essentially had free water for the tenancy. Green v McGregor [2015] NZTT Waitakere 1292 at [12].
The tenants and the landlord have already reconciled the water, power and internet accounts in the above way and therefore no further orders are needed. That the property does not have a second exit, which breaches fire regulations (breach of s45(1)(c)).
The landlord had not allowed access to the downstairs door, because this was the entrance used by the downstairs tenant. This meant that the tenants only had one way of exiting the property in a fire.
At the hearing this was discussed fully, and like the tenants I was of the understanding that there should always been two methods of egress from a building. However, the tenants could not refer me to the specific clauses in legislation that state that, and I am unaware of what those are.
It is the tenant’s application, and they have the burden of proving their claim. As they have been unable to identify what section of legislation has been breached, then I cannot find a breach has occurred.
I understand that the landlord has since the first hearing, given the tenants a set of keys for the downstairs door so they now have two means of egress.

Did the landlord unlawfully enter the property?

The landlord always gave notice to attend the property and told the tenants what she proposed to do at the property. A landlord does not need to give notice to attend to outside maintenance such as lawns and gardens, although it is helpful if they do, because the tenants might have planned something outside that day.
The landlord also visited the downstairs tenant and when the tenancy ended, she went into the downstairs unit to use it. She was legally able to do this as the tenants do not rent that part of the premises.
There is no evidence that supports that the landlord unlawfully entered the property. The tenants have not proven their claim. Conclusion.
It is my observation that there is a mismatch of understanding between these tenants and landlord about what each of their rights and obligations are under the RTA. This may be mitigated now that the landlord has appointed a property manager.
At the hearing the landlord agreed that she would not hold the tenants to their fixed term tenancy if the tenants found another place to move to. I consider that appropriate in these circumstances.
I do not award the filing fee to the tenants as they have only been partly successful in their claims.
As both parties have been partly successful and partly unsuccessful, I do not award either name suppression in this matter. It is in the public interest that the Tribunal’s decisions, like this one, are published fully.

Tenancy Tribunal case 4759723 — 14-day notice at 11 Carlton Road, Pukekohe, Pukekohe 2120

At a glance

Tenancy Tribunal case 4759723 — 14-day notice at 11 Carlton Road, Pukekohe, Pukekohe 2120

At a glance

Claims & awards

Order

Reasons

Did the landlord unlawfully enter the property?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord unlawfully enter the property?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions