What was the outcome of Tenancy Tribunal case 4817542?

The tribunal order states: No suppression orders apply around the publication of this decision.

How much money was awarded in case 4817542?

Water Rates: $960.00 awarded to landlord

What type of tenancy dispute was case 4817542?

The dispute type was not classified.

Where can I read the official tribunal order for case 4817542?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10599265-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4817542?

The tribunal order states: No suppression orders apply around the publication of this decision.

How much money was awarded in case 4817542?

Water Rates: $960.00 awarded to landlord

What type of tenancy dispute was case 4817542?

The dispute type was not classified.

Where can I read the official tribunal order for case 4817542?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10599265-Tribunal_Order.pdf.

24 Holt Avenue, Torbay, Auckland 0630 Tenancy Tribunal Case 4817542 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4817542 — net $960.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Water rates	$960.00	Water rates
Net award	$960.00
Total payable by Tenant to Landlord	$960.00

No application for suppression has been made and no suppression orders apply around the publication of this decision.

Both parties attended the hearing which took place on 24 June 2024

On 24 June 2024, the hearing was adjourned to allow the landlord to provide documents including email correspondence supporting his claim that the tenant was sent invoices for water as and when they were received.

Both parties attended the further telephone hearing which took place on 18 July 2024.

The landlord is seeking rent arrears of $1,120.00 and water rates of $4,590.40.

The Tribunal’s records show that there is no bond balance with the Bond Centre for this tenancy. If either party considers this is incorrect, they should contact the Bond Centre.

Is the tenant liable for rent arrears?

The shortfall in rent claimed relates to a period from March to early July 2020. The tenant said he did not pay full rent during this period because he had an agreement with the landlord to pay reduced rent temporarily. The landlord said that he agreed to reduce the rent but that the shortfall was to be paid back later. The tenant disagreed that the parties had agreed the shortfall was to be repaid.

Fortunately, there is contemporaneous correspondence between the parties on the matter. On 22 March 2020, the tenant sent an email to the landlord advising that his business was being negatively affected by COVID-19 restrictions and requesting a reduction in rent.

On 23 March 2020, the landlord sent an email to the tenant saying: I can support you with 10% ($70) reduction of your rent under the current situation (it means $70 reduction every week).

In this email, the landlord does not state that the reduction was to be repaid later. At the hearing, the landlord said this was implied.

I find that there was no agreement for the reduction to be repaid for the following reasons: a. The written correspondence does not state that the money is to be repaid. b. The amount of time the landlord has taken to pursue this claim. The shortfall claimed is for a period prior to early July 2020. The tenancy continued until March 2024. If the landlord genuinely believed that there was an agreement for the shortfall to be repaid, I consider he would have requested the sum from the tenant earlier. There is no evidence that he did so.

The landlord’s claim for rent arrears is dismissed.

Is the tenant liable for the outgoings sought?

The landlord is seeking $4,590.40 in water rates for the period from 27 July 2020.

Section 39 of the Residential Tenancies Act 1986 (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 facilities.

The parties had agreed that the tenant would pay a fixed sum of $80.00 per month towards water consumption rates and the landlord’s records show that the tenant paid these amounts up until 24 January 2022 and then ceased making payments. The invoices provided show that the water consumption rates were significantly higher than $80.00 per month.

The parties had correspondence in the form of emails and text messages regarding the high water rates. On at least two occasions, the landlord messaged the tenant referring to the high water rates and asking him to check to see if there were any leaks.

At the hearing, the landlord said the reason why the water bills were so high was because of the number of people residing at the property. There were no restrictions in the Tenancy Agreement on how many people could reside at the property and, according to the tenant, there were up to 7 people residing at the property. The tenant says the water bills were high because there was a leak.

The claim for water consumption rates in excess of $80 per month is dismissed for three reasons. Firstly, the tenant’s responsibilities under Section 40(1) of the RTA include a requirement that the tenant must notify the landlord as soon as possible after becoming aware of the need for any repairs. If the tenant had noticed a leak, then he had an obligation to report it. However, it is not the tenant’s responsibility to check for a leak. The landlord asked the tenant a number of times to check for a leak. He could have and should have engaged the services of an appropriate tradesperson to carry out this investigation.

Secondly, it is significant that the water rates the landlord is seeking were allowed to increase from 27 July 2020 to $4,590.40. There is no evidence that the landlord took action to recover these sums.

Landlords have a duty to mitigate their losses. Section 49 of the RTA provides:

Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.

The landlord’s obligation is to take all reasonable steps to mitigate his losses. 1 In my assessment, in the current case, the landlord has not acted reasonably to mitigate his losses. As a result, the landlord has incurred losses which would have been avoidable otherwise. 1 British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689.

A reasonable landlord when presented with increasing water rates would act. In this case, the landlord informally raised the high water charges with the tenant and asked the tenant to check for leaks. If raising the matter informally with the tenant did not solve the issue and, once the concern around leaks had been addressed, the landlord could have taken further steps. Under the RTA, landlords have the option of issuing a 14-day notice to the tenant requiring the matter to be addressed. (See section 56 of the RTA.) If that did not resolve the issue, then the landlord could have applied to the Tribunal for orders for the rates to be paid or even to terminate the tenancy to avoid the water rates increasing further. The landlord did not do so.

Thirdly, the landlord failed to provide the tenant with the invoices for water as they fell due and failed to make it clear that the tenant was expected to pay the difference.

The documentary evidence shows that the landlord the water invoices to the tenant on three occasions. However, the claim relates to monthly invoices over a period of almost two and a half years.

In the District Court decision of DF Woollams v S Simpson and MS Simpsons DC AK CIV 2005-004-1583, 16 March 2006, Judge McElrea said: There is an implied term in this tenancy agreement that the landlord would provide accounts to the tenant at regular intervals so as to engage payment to be made. ... I imply such a term because it seems to me to be a necessary term to make commercial sense of the agreement. How can a tenant be expected to pay for a regular charge such as a quarterly charge unless it is told the amount of the amount of the charge from time to time?

Furthermore, in this case, the landlord’s wording is vague, it is unclear how much he expected the tenant to pay. On 29 October 2021, the landlord sent an email to the tenant saying [t]he water bills are very high and we agreed that I pay around $80 to $100 monthly but every month is getting higher. In the past 24 months, I covered the bills but we need to come to a solution to be fair for both of us.

The tenant advises that he stopped paying the $80 per month for water consumption because of other issues he had with the property including: black mould in the bedroom, the property not having a valid electrical certificate, no working fire alarms and a broken garage door opener. If the tenant had concerns about the property, then the correct course of action was not to stop making payments he had agreed to pay towards water. The tenant could have issued a 14-day notice to carry out repairs (see section 56 of the RTA) and/or pursued his claims to the Tribunal. The tenant has not filed an application in relation to those claims. It is of course, open for him to do so.

During the period from 25 February 2022 to the end of the tenancy, the tenant failed to make 25 monthly payments of $80.00 towards water consumption charges. As the parties had agreed the tenant would pay $80 per month towards water charges and the tenant knew that the water was likely to be at least this amount, I consider it is reasonable to award some of this amount to the landlord. Given the landlord’s failure to mitigate his losses (see paragraph 18 above), I am not minded to award the full amount. I order the tenant to pay the landlord $960.00 towards water consumption.

The landlord’s claim for rent arrears is dismissed. The landlord’s claim for water consumption rates is partially granted.

The landlord has not wholly or substantially succeeded with the claim. Therefore, I decline to order reimbursement of the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4817542 — net $960.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Water rates	$960.00	Water rates
Net award	$960.00
Total payable by Tenant to Landlord	$960.00

No application for suppression has been made and no suppression orders apply around the publication of this decision.

Both parties attended the hearing which took place on 24 June 2024

Both parties attended the further telephone hearing which took place on 18 July 2024.

The landlord is seeking rent arrears of $1,120.00 and water rates of $4,590.40.

The Tribunal’s records show that there is no bond balance with the Bond Centre for this tenancy. If either party considers this is incorrect, they should contact the Bond Centre.

Is the tenant liable for rent arrears?

On 23 March 2020, the landlord sent an email to the tenant saying: I can support you with 10% ($70) reduction of your rent under the current situation (it means $70 reduction every week).

In this email, the landlord does not state that the reduction was to be repaid later. At the hearing, the landlord said this was implied.

The landlord’s claim for rent arrears is dismissed.

Is the tenant liable for the outgoings sought?

The landlord is seeking $4,590.40 in water rates for the period from 27 July 2020.

Landlords have a duty to mitigate their losses. Section 49 of the RTA provides:

Thirdly, the landlord failed to provide the tenant with the invoices for water as they fell due and failed to make it clear that the tenant was expected to pay the difference.

The documentary evidence shows that the landlord the water invoices to the tenant on three occasions. However, the claim relates to monthly invoices over a period of almost two and a half years.

The landlord’s claim for rent arrears is dismissed. The landlord’s claim for water consumption rates is partially granted.

The landlord has not wholly or substantially succeeded with the claim. Therefore, I decline to order reimbursement of the filing fee.

Tenancy Tribunal case 4817542 — Tenancy dispute at 24 Holt Avenue, Torbay, Auckland 0630

At a glance

Tenancy Tribunal case 4817542 — Tenancy dispute at 24 Holt Avenue, Torbay, Auckland 0630

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant liable for rent arrears?

Is the tenant liable for the outgoings sought?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant liable for rent arrears?

Is the tenant liable for the outgoings sought?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions