What was the outcome of Tenancy Tribunal case 4826077?

The tribunal order states: Warwick Fowler must pay Kelly Griffiths $70.44 immediately, being $50.00 for

How much money was awarded in case 4826077?

Filing Fee: $20.44 awarded to landlord; Immediately, Being: $50.00 awarded to landlord

What type of tenancy dispute was case 4826077?

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

Where can I read the official tribunal order for case 4826077?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10305280-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4826077?

The tribunal order states: Warwick Fowler must pay Kelly Griffiths $70.44 immediately, being $50.00 for

How much money was awarded in case 4826077?

Filing Fee: $20.44 awarded to landlord; Immediately, Being: $50.00 awarded to landlord

What type of tenancy dispute was case 4826077?

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

Where can I read the official tribunal order for case 4826077?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10305280-Tribunal_Order.pdf.

Unit/Flat 7, 7 Torrens Road, Burswood, Auckland 2013 Tenancy Tribunal Case 4826077 — State of repair

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Order

Claims and awards in Tenancy Tribunal application 4826077. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
immediately, being	$50.00		immediately, being
for breach of quiet enjoyment and the filing fee of	$20.44		for breach of quiet enjoyment and the filing fee of

Warwick Fowler must pay Kelly Griffiths $70.44 immediately, being $50.00 for breach of quiet enjoyment and the filing fee of $20.44.

Warwick Fowler shall use his best endeavours to fix the skylights in the premises by 5pm on Monday 13 May 2024 so that they open and close properly. The landlord may perform repairs at the inspection at midday on Thursday 9 May 2024 or on any other day at any time between 8am in the morning and 7pm in the evening by giving 24 hours’ written notice (including by email) of the date and time to the tenant.

Reasons

Both parties attended the hearing on 7 May 2024. Background

The parties agreed a residential tenancy of the upper floor at a rent of $540.00 per week. The tenant lives upstairs in an apartment. Downstairs there is a commercial business. There is a single joint entrance leading to a small atrium and separate locked doors for entry to the business and the apartment. The business owners are also the landlord’s tenants.

The tenant moved in on 17 January 2024. She says she was not told about the business operating on the ground floor but was aware of a bad smell which she assumed was coming from a nearby butchers.

After several days the tenant realised she was living above a dog food company. The tenant says she was not told about this, and if she had been, would not have moved in with her children, who are now exposed to the bacteria and bad smell. There are also issues with noise coming from the business at 8am in the morning and when her children are trying to sleep around 8-9pm in the evening.

The tenant characterised the downstairs business as a “raw meat dog food company”. She provided photographs said to show the products sold. The landlord characterised the business as a food processing business and said all the food products were frozen.

On 5 March 2024 the tenant applied for exemplary damages for non-disclosure of the nature of the business, breach of quiet enjoyment, retaliation from the landlord by way of inspection, and failure to provide a receipt for the bond. In discussion at the hearing the tenant said she was also claiming compensation in an unspecified amount. The Downstairs Business

In my view, the landlord did not have an obligation to disclose the nature of the business operating below the premises. At common law there is no implied term that premises are suitable for the purposes for which they have been let (Felton v Brightwell [1967] NZLR 276) and no provision of the Residential Tenancies Act 1986 (the Act) to this general effect. Additionally, the landlord says he did explain that there was a food processing business in the downstairs unit.

On the evidence available, I do not consider that unpleasant smells from the business downstairs are a breach of the tenant’s quiet enjoyment. There is nothing to indicate that the specific commercial activity is not permitted by the body corporate rules or any other enactment. I was told that the body corporate rules impose noise restrictions from 11pm to 7am and that the downstairs business had passed an audit by MPI in March this year. I note that the building is in the Business-Light Industry zone under the Auckland Unitary Plan (AUP) so commercial and industrial activities are to be expected. Although unpleasant smells and noise from the business are causing the tenant discomfort, it is not clear that the landlord is legally able to prevent or control this.

The outcome would probably be different if there was evidence from an environmental health officer that, for example, the business was being so carried on as to be “unnecessarily offensive or likely to be injurious to health”, and therefore a “nuisance” under section 29 of the Health Act 1956. Or if an Auckland Council compliance officer had issued a notice that the building is insanitary under sections 123 and 124 of the Building Act 2004. Such conditions would go beyond what could be expected, even in a Business-Light Industry zone. If the smells are as bad as the tenant says they are, which is a subjective opinion at least to some degree (and disputed by the landlord) then that kind of intervention might be appropriate.

I expressed concern at the hearing about whether the upstairs unit had resource consent for residential use. It is possible that the upstairs accommodation was originally secondary to the downstairs business use and authorised for use in that connection only. However, neither party had evidence to present on this issue, and it was not how the application was presented. I have assumed that the mixed use was not prohibited. Breach of Quiet Enjoyment

The tenant claimed that the landlord breached her quiet enjoyment near the start of the tenancy by visiting unannounced on 5 occasions. On the first occasion, 18 January 2024, the landlord visited when the tenant was not home, responding to some maintenance issues (including with the lights) the tenant had raised. On the second occasion the landlord came to drop off a lightbulb. The tenant was asleep at the time. On the third occasion the landlord visited when the tenant was asleep and unwell and according to her, said the rent was 3 days late. According to the landlord, he enquired whether the tenant had set up the automatic payment they had discussed. The final 2 visits were to the downstairs unit.

The landlord’s visits were in the mid-afternoon. The visits to the downstairs unit cannot be viewed as any kind of interference with the tenant’s reasonable peace, comfort, or privacy. The first visit to the premises was not a breach of quiet enjoyment because the tenant was not there. The second visit appears to have been in response to conversations about things that needed fixing. The tenant was woken up, which was inconvenient, but at that time of day did not constitute interference with her reasonable peace, comfort, or privacy. The landlord denied attempting to open the door to the apartment with his key.

The third visit is more troubling if the purpose was to harangue the tenant about a few days’ unpaid rent. There was no need to seek entry to the premises for this purpose. Arguably, it was also a breach of quiet enjoyment to try to enter the premises simply to discuss payment arrangements. It was not suggested that the landlord was responding to any concern expressed by the tenant and according to her, the rent was not in arrears.

I find that the third visit by the landlord did breach the tenant’s reasonable, peace, comfort, or privacy. The breach is minor. I award $50.00 to acknowledge the breach.

Following these issues, the tenant served a trespass notice on the landlord dated 13 March 2024. This is relevant to whether the landlord has complied with his maintenance obligations. Maintenance Obligations

The tenant said that the landlord failed to perform maintenance to the skylights at the property or to fix/replace a malfunctioning fridge. There was also an issue with cockroaches which started about a month after she moved in. The tenant’s photographs do suggest an infestation had developed.

Pursuant to section 45 of the Act, the landlord has an obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.

A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)). Landlords must investigate and repair a defect brought to their attention in a timeframe that is reasonable in the circumstances (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085- 001431, 24 February 2010)). Failure to comply with the maintenance obligation is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.

The tenant emailed the landlord on 28 March 2024, informing him that the fridge was not working properly, and she had lost about $200.00 of food. Further, the skylight mechanism in both rooms was broken. One of the skylights would not close. The tenant requested the landlord send technicians to fix the issues.

The landlord responded later that day. He noted that he always does his own repairs. Because he was not allowed on the property, he said he would have to find a repair person. On 2 April 2023, the landlord said he had spoken to someone about the repairs, who would call the tenant to make a time to visit.

At the hearing, the landlord said the person he found had declined to return to the premises to perform repairs because of aggression from the tenant. The tenant said the builder came through the unit and saw all the issues, so someone just needed to be sent to do the work.

I am not satisfied that the landlord has failed to address maintenance concerns within a reasonable time. The landlord said he was hearing about the cockroach issue for the first time. The landlord could not address an issue that had not been notified. Despite the trespass notice, the landlord did take steps to arrange a tradesperson to deal with the other issues, and this tradesperson attended to see what needed to be fixed.

That said, I will direct the landlord to make urgent efforts to fix the skylights. I understood these are one of the main means of ventilation in the premises. Heading into winter, it should also be possible to close the skylights to preserve warmth.

To try and ensure this happens rapidly, I have ordered that the repairs can be performed at the inspection I have directed (in my order yesterday) to take place on Thursday 9 May 2024 (tomorrow) or at any other time between 7am and 8pm on 24 hours’ written notice. Given that the tenancy is ending on Friday 17 May 2024, this order only requires the landlord to use his best endeavours to repair the skylights on an urgent basis. Bond Receipt

The landlord accepted that he did not provide a receipt for the bond. However, he said the tenant would have received a letter from Tenancy Services confirming they had received the bond when it was lodged.

A bond receipt is often endorsed on the tenancy agreement. As at the date and time of this order, the tenancy agreement has not been provided.

The failure to provide a receipt is a breach of section 19 of the Act and an “unlawful act” for which exemplary damages may be awarded. The purpose of the provision is more evident when a tenant pays a bond in cash: it ensures there is a written record of the payment. This is less important when the bond is paid by bank transfer, as the tenant says it was here.

After considering the factors in section 109(3) of the Act, I do not consider it would be just to award exemplary damages. The tenant has not been prejudiced by the breach. The bond is safely held by the Bond Centre. Inspections

The tenant said the landlord retaliated against her by seeking to perform inspections, not because they were needed, but because she raised maintenance issues.

The March 2024 emails show the landlord seeking to arrange a convenient time with the tenant. The landlord said he wanted the tenant to be present at the inspection. In an email on 3 March 2024 the landlord said it would be better if the tenant was present, “so we can address any concerns you have”. In her emails, the tenant said she was not comfortable meeting the landlord on his own and felt intimidated. She also said that while the landlord would “show up” at the premises, nothing had been fixed.

I cannot see that the landlord was doing anything untoward. The tenant raised maintenance issues and the landlord wanted to inspect so he could address them. I do not agree that the landlord could be expected to address concerns without having an opportunity to view the problem. Legally, the tenant did not need to be present at the inspection, although in practice many tenants prefer to attend. It was open to the landlord to request attendance, but he could not (and in my view, did not) insist on it. Rent in Advance

The tenant said that the landlord breached section 23 (rent in advance) in an email dated 5 May 2024 when he requested that rent to 17 May 2024 be immediately paid. This was in the context of discussions about ending the tenancy. I understood the landlord’s concern stemmed from a perceived tendency for tenants to stop paying rent near the end of a tenancy, so that the landlord has to use the bond.

The tenant said the rent is paid up until 8 May 2024, so the landlord’s request required payment of rent before expiry of the current rent period. On the landlord’s figures, it was also a request for payment more than 2 weeks in advance. I agree that there was a breach of section 23, but I consider it needs to be seen in the context of a discussion about ending the tenancy by agreement. I find it would not be just to award exemplary damages. Filing fee

The tenant’s application has been partly successful. The claim in respect of the downstairs business has been dismissed, not because the claim lacks viability legally, but because it is not established on the evidence. I have found that the landlord did breach the tenant’s quiet enjoyment on one occasion. I have directed that the skylights be fixed because it should be possible to close them in colder weather. I award the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4826077. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
immediately, being	$50.00		immediately, being
for breach of quiet enjoyment and the filing fee of	$20.44		for breach of quiet enjoyment and the filing fee of

Warwick Fowler must pay Kelly Griffiths $70.44 immediately, being $50.00 for breach of quiet enjoyment and the filing fee of $20.44.

Reasons

Both parties attended the hearing on 7 May 2024. Background

The tenant moved in on 17 January 2024. She says she was not told about the business operating on the ground floor but was aware of a bad smell which she assumed was coming from a nearby butchers.

I find that the third visit by the landlord did breach the tenant’s reasonable, peace, comfort, or privacy. The breach is minor. I award $50.00 to acknowledge the breach.

Pursuant to section 45 of the Act, the landlord has an obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.

A bond receipt is often endorsed on the tenancy agreement. As at the date and time of this order, the tenancy agreement has not been provided.

The tenant said the landlord retaliated against her by seeking to perform inspections, not because they were needed, but because she raised maintenance issues.

Tenancy Tribunal case 4826077 — State of repair at Unit/Flat 7, 7 Torrens Road, Burswood, Auckland 2013

At a glance

Tenancy Tribunal case 4826077 — State of repair at Unit/Flat 7, 7 Torrens Road, Burswood, Auckland 2013

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions