Published tribunal order
Tenancy Tribunal case 4858906 — Rent arrears at Unit/Flat Unit 3, 144 Forbury Road, Saint Clair, Dunedin
Decided 5 Sept 2024 · Published 5 Sept 2024 · Application 4858906
Landlord favoured
- Rent arrears
Order
- Alexander Foulkes must pay Philippa Wood T/A Hazelbank Apartments $2,860.44 immediately, calculated as per the table below:
- The Bond Centre is to pay the bond of $1,860.00 (3055119-030) to Philippa Wood T/A Hazelbank Apartments immediately.
- The application by Alexander Foulkes for compensation of $6,360.00 and exemplary damages is dismissed.
Reasons
- Both parties attended the hearing, by telephone.
- The tenancy was originally for a fixed term from 1/1/2024 to 12/1/2025 at $465.00 rent per week.
- By consent the tenancy ended on 16/6/2024.
- On 9/4/2024 the tenant applied for a refund of his bond, compensation by way of a refund of all rent paid and exemplary damages for breach of his quiet enjoyment.
- The landlord cross applied on 11/4/2024 for termination of the tenancy and rent arrears.
- By the time of the hearing the tenant had vacated the premises by agreement and the issue of termination was moot.
- The landlord then sought compensation of $259.90 for cleaning and replacement of a charcoal filter.
- However, because the landlord had not amended her application and the tenant did not agree to the compensation claim being heard I was unable to determine that matter. Tenant’s claim Did the landlord breach the tenant’s quiet enjoyment in his use of the premises?
- The tenant submitted that his tenancy was significantly affected by the scaffolding put up at the premises on 11/3/2024 and the work which carried on for the time he occupied the flat.
- In particular, the tenant was unhappy about access to his flat, lack of privacy from tradespeople, safety from debris, inability to work from home, noise, dirt, tradespeople starting before 8am and sometimes working on weekends, TV aerial needing shifted and a leak.
- While agreeing that the landlord had advised on 30/1/2024 that scaffolding was to be erected the tenant was adamant that he did not know when he signed the tenancy agreement on 8/12/2023 “that there was to be significant building work undertaken at the flat”.
- Had he known the tenant suggested that he would not have signed the tenancy agreement.
- The tenant provided and spoke to written submissions, photographs taken between March and June 2024 and correspondence between the parties.
- Due to his unhappiness with the conditions, which he felt made the premises unliveable and after discussions with Tenancy Services, the tenant reduced his weekly rent payments to $65.00 from 25/3/2024.
- In response, the landlord submitted that the work on the premises was undertaken because of damage to the roof in a wind event in May 2023, for which she had claimed insurance.
- As scaffolding was needed to repair the roof and taking into account the property was very large, the landlord took the opportunity to have the outside of the premises painted while the scaffolding was in place.
- The landlord did not believe that the tenant’s quiet enjoyment of the premises had been significantly affected because there were only two painters and two roofers onsite, she provided alternative access for the tenant and had the scaffolding height lifted outside the external door of the flat.
- Further the landlord submitted that she had offered the tenant compensation and an early release from his fixed term tenancy in March, which he declined to initially accept.
- In support of her position the landlord provided a timeline of events and photographs of the scaffolding in April and June 2024.
- The landlord was equally adamant that she had told the tenant about the “upcoming exterior repairs” when he viewed the premises on 8/12/2023.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
- The tenant is required to establish his claim to the civil law standard of proof, on the balance of probabilities.
- After hearing from both parties and carefully perusing the documentation provided, I am not persuaded that it is more likely than not first, that the tenant was not told about the work and second that his quiet enjoyment of the premises was interrupted to such an extent as to make his flat unliveable.
- A landlord has many obligations. Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- I am not persuaded by the tenant’s evidence that he was not told about the planned work on the premises before the message of 30/1/2024 about the scaffolding. Put simply it is not credible that the landlord, in the midst of arranging an insurance claim and significant work arising from that, would not tell a prospective tenant about the upcoming repairs.
- While clearly the tenant would have suffered some inconvenience while the scaffolding was installed, and the work being undertaken the photographs do not support that this was insurmountable or for the whole period the tenant suggests.
- Moreover, I am satisfied the steps taken by the landlord to mitigate the situation, such as alternative access, an offer of compensation, early release from the fixed term, repair of the TV aerial and covering the bathroom window because of privacy concerns, were reasonable.
- I find the landlord has not committed an unlawful act.
- The tenant’s claim for exemplary damages and compensation fails. Landlord’s claim
How much rent is owed?
- By agreement the tenancy ended on 16/6/2024.
- The landlord provided rent records which support the amount owing.
- In addition, the landlord reduced the amount by $100.00 as compensation for the difficulties experienced by the tenant as a result of the scaffolding and work undertaken on the external areas of the premises.
- An award of the arrears less the offered compensation has been made.
- As the landlord has substantially succeeded with the claim, I must award the filing fee.
- The landlord did not ask for name suppression.
- Suppression under section 95A is not available to the tenant because he was unsuccessful with his claims.