What was the outcome of Tenancy Tribunal case 4870082?

The tribunal order states: The tenants application is dismissed.

How much money was awarded in case 4870082?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4870082?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4870082?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10580694-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4870082?

The tribunal order states: The tenants application is dismissed.

How much money was awarded in case 4870082?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4870082?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4870082?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10580694-Tribunal_Order.pdf.

7A Blenheim Place, Vogeltown, New Plymouth 4310 Tenancy Tribunal Case 4870082 — State of repair

Order

The tenants application is dismissed.
It is declared that the landlord has not breached the Healthy Homes Heating Standards or failed to maintain in relation to the heater.

Reasons

Both tenants and two representatives from Property Brokers attended the hearing. The tenant’s application relates to heaters at the property and market rent. My earlier order dated 18 June 2024 set out the claims in full following a case management hearing.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the tenant must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” The parties
This tenancy is a long one. Mrs Hunter says she first lived in the property from 1996 to 2010. She then moved out but then wanted to return. She did return, and her tenancy was then recorded in the tenancy agreement before me. Her tenancy began on 23 October 2010. She has remained in the property since. Ms Patricia Hunter (in her former name pre-marriage to Mr Hunter) is the only tenant listed on the tenancy agreement.
Ray White were the property managers (listed on the tenancy agreement in their corporate name as agent for Prue Farnworth) until 3 November 2023 when Property Brokers took over the management.
Mr Hunter says he is a tenant. The landlord disputes this. The Tribunal deals with disputes between landlords and tenants and so I must first consider if Mr Hunter is a tenant.
Mr Hunter says that he got married to Mrs Hunter in 2022 and after they were married he went to Ray White to get his name added to the tenancy agreement. He says he did this in March 2022. He says that he signed a change of tenant form and also signed something at the same time about heating standards. The tenant also referred to discussions with Ray White changing him to be the lead tenant due to the personal circumstances of Mrs Hunter.
He says that the way in which Ray White treated him showed that he was a tenant because they would communicate with him about the tenancy. Mr Hunter provided me with a limited number of emails about the condition of the property to support this position.
The landlord says that they have made investigations with Ray White and that they have no record and knowledge of a change/addition of tenant. Tenancy Services (the Bond Centre) has no such record either.
Taking into account all of the evidence presented to me, I find that Mr Hunter was more likely than not added to the tenancy as a tenant on or about March 2022. He was clear in his oral evidence that he had been to the previous Property Manager’s office to add him to the tenancy and the reason why this was the case (marriage and moving in together), he also recalled an express discussion about him being marked as the lead tenant. This discussion would not have occurred if he were not a tenant.
Although he could not point to a formal letter provided by Ray White to him about tenancy matters at the hearing, the evidence filed in advance of the hearing does include a letter to both him and Mrs Hunter from Ray White setting out the details of a property inspection (dated October 2023). This letter also referred to the keeping of service details up to date. I find it more likely than not that Mr Hunter would not have been included in such a letter or in detailed communications about the condition of the property if Ray White had not considered him to be a tenant.
Further, Property Brokers wrote to both Mr Hunter and Mrs Hunter to advise them both that they were taking over management activities. It is not clear why they would address the letter to Mr Hunter if he was not regarded as a tenant particularly because the letter states “Dear Neil and Patricia....for which you are currently a tenant....”
I am satisfied that Mr Hunter is a tenant alongside Mrs Hunter and may be a party to the application before me. Heating
The tenant seeks a declaration confirming whether there has been a breach of the Healthy Homes Standards (section 45(1)(bb), Residential Tenancies Act 1986 (RTA)) and/or a failure to maintain in relation to panel heating on the ceiling.
Under s 45(1)(b) Residential Tenancies Act 1986 (RTA) a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
Compliance dates for the HHS vary depending on the tenancy. Private rentals must comply within a certain number of days (either 90 or 120 days depending on the circumstances) of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
Mr Hunter says the heater was not efficient and this was reported initially to Ray White. This is set out in an email dated 25 August 2023: Another matter, your heating panels- ceiling, I doubt are compliant, they take an eternity to provide even a semblance of warmth, in fact I suspect they're faulty, needing auxiliary heating from our small fan heaters.
On 28 August 2023 Ray White wrote “Neil the owner has said if you are unhappy with the house you are welcome to vacate. We are addressing the issues the best we can”.
In November 2023 Property Brokers took over the tenancy. The tenant says that in January he discussed the heaters with Property Brokers when they went over everything. They say that Property Brokers said they would arrange an electrician, but nothing happened. Then, during a routine property inspection it was mentioned again in May 2024. An electrician then came on 30 May 2024. Thermostats were moved and the tenant says that the heating was then more efficient.
The landlord says there was always functional heating that worked but that it was not ‘great’ and there were other panel heaters that the tenant could use. The landlord acknowledged the January discussion but as it was summer the issue was not prioritised. Property Brokers say that they first knew about the issue from the tenant from January from the verbal discussions.
The tenant says that upon an electrician’s investigation in May 2024 it transpired that the thermostats for the heaters were not placed in a position so that the heating was not as efficient as it could be.
This tenancy began in 2010. I find that this means there has been no breach of the Healthy Homes Standard as they do not presently apply. Adding Mr Hunter as a tenant in 2022 does not change the date for Healthy Homes compliance because the tenancy would have been varied rather than a new or renewed tenancy - so HHS would still not apply.
While the landlord did not have to comply with HHS it must still provide and maintain the premises to a reasonable state of repair.
I accept that while the thermostat may not have been placed ideally, so the heaters could be as efficient as they might have been the same heating system (including thermostats) has been in the premises since 2010 and the tenant only raised an issue around efficiency in 2023. I heard how the heater was working but how its efficiency could be improved. While it appears that the thermostats could have been installed differently to operate the heater more efficiently, on the basis of the evidence before me, I am not satisfied that the heater was not generally operating in a reasonable way. The fact that the tenant considered its operation with the thermostats in the same position to be sufficient from 2010 to 2023 would indicate that the heater still worked reasonably. The tenant appears to have been motivated in saying that the heating was insufficient by a misplaced understanding that the Healthy Homes Standards applied. But, there is no heating output standard applicable to this tenancy at the present time because the HHS do not yet apply.
I declare that there has been no failure to maintain in relation to the ceiling panel heater. Market rent
The remaining issue for determination relates to the rent payable for the premises.
The tenant says that a rent increase to $400 from $350 per week is not in line with market rent.
Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount.” The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant.’ Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
The test for market rent is the amount “a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay for the tenancy.”
The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the RTA. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
In the case before me the tenant did not have any probative evidence whatsoever. The tenants’ argument centres on the fact that their rent matches the adjoining unit next door but that they say this property is better than their property - and so their rent should be less.
There are no photographs of the property (or the neighbouring property) presented by either party. However, the property is described as being a 69m 2 property of weatherboard construction from approximately the 1950s.
The tenant could not tell me or describe the size of the section but says that the condition of the property inside is 1990s and described it as being “quite good”. The property has a mix of carpet and lino and the finish is paint and wallpaper. The tenants say that it was painted inside in the last few years (2022 or 2023).
The tenants say that the neighbours pay $400 a week but their property is bigger. They could not say how much bigger. They say that the neighbour has a garage and has superior garden sheds, they also say that the neighbour enjoys greater privacy and a larger garden (but could not provide details on size). They say the neighbours have a heat pump and a fire.
The landlord acknowledges that the neighbour pays $400 a week but says that the property is in not as good condition as the tenant’s property and if it was refurbished it would attract market rent of upwards of $500. The landlords point to the desirability of the location in a cul-de-sac.
The landlords provided market rent data from the Bond Centre. The property is in Vogeltown.
Bond records between 1 December 2023 and 31 May 2024 show properties overall rented in Lower Vogeltown in the lower quartile to be $550 and the median to be $650. A 2 bedroom property in Lower Vogeltown in the lower quartile is $530 and the upper quartile is $570.
Bond records between 1 December 2023 and 31 May 2024 show properties overall rented in Vogeltown in the lower quartile to be $550 and the median to be $585. A 2 bedroom property in Vogeltown in the lower quartile is rented for $520, the upper quartile is $560.
The landlord’s say the Upper Vogeltown Bond Data has no 2 bedroom data so is of limited use.
The landlords also provided me with a list taken from Trade Me. The list shows a variety of two-bedroom properties. The list is limited because it only shows one photograph per property (either an exterior or interior photography). However, it does show two-bedroom properties across New Plymouth. The landlord says that the most comparable property is a 2 bedroom house in Clovelly Street because it is of he same type of construction/era as the tenant’s property. This is presently rented for $580 per week. The properties start from $550 per week.
I heard from the landlord that the property next door as not perfect, if it was improved this property would be put on the market to rent in excess of $500 and if the present tenants were to move their unit would likely be rented for $520 per week. The landlord’s say the property is rented at significantly less than market value.
The tenants did not challenge the landlord’s market rent evidence.
While the property next door is one comparator its evidential value carries only some weight because this is only one property rather than general market rent.
The landlord’s also provided reasons why there was divergence in the rents paid by the two properties.
It is difficult to come to a precise figure of market rent without better evidence relating to the property itself and more details (such as both internal and external photographs) of comparison properties. However, on the basis of the evidence before me I am satisfied that the market rent for this property is around $480 to $500 per week. Significantly, I have taken into consideration the fact that this is an adjoining house rather than a stand-alone dwelling which would usually attract a lesser weekly rent.
Therefore, the claim that the rent exceeds the market rent by a substantial amount is dismissed. Suppression
No application was made for name suppression by either party and so I have not considered this.

Tenancy Tribunal case 4870082 — State of repair at 7A Blenheim Place, Vogeltown, New Plymouth 4310

At a glance

Tenancy Tribunal case 4870082 — State of repair at 7A Blenheim Place, Vogeltown, New Plymouth 4310

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions