What was the outcome of Tenancy Tribunal case 4876142?

The tribunal order states: Gerhard Kohler Family Trust must pay Joni Leef and Jake Raumati Brown

How much money was awarded in case 4876142?

Compensation: Loss Of Use Of Garage: $300.00 awarded to tenant

What type of tenancy dispute was case 4876142?

The dispute type was not classified.

Where can I read the official tribunal order for case 4876142?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10478229-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4876142?

The tribunal order states: Gerhard Kohler Family Trust must pay Joni Leef and Jake Raumati Brown

How much money was awarded in case 4876142?

Compensation: Loss Of Use Of Garage: $300.00 awarded to tenant

What type of tenancy dispute was case 4876142?

The dispute type was not classified.

Where can I read the official tribunal order for case 4876142?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10478229-Tenancy_Tribunal_Order.pdf.

28 Ngahere Drive, Horahora, Whangarei 0110 Tenancy Tribunal Case 4876142 — Tenancy dispute

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Reasons

Background

Claims and awards in Tenancy Tribunal application 4876142 — net $300.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of use of garage	$300.00	Loss of use of garage
Net award	$300.00
Total payable by Landlord to Tenant	$300.00

The tenancy began on 10 January 2024.

On 17 April 2024, the landlord issued a notice to terminate the tenancy on 21 June. The stated grounds for termination is that the landlord requires the premises as a place a residence for themselves or a member of their family.

The tenants’ application challenges the validity of that notice, and also raises issues relating to the bond, use of the garage, the cost of chemicals for the swimming pool and a gutter leak (or possibly leaks).

The hearing took place in Whangarei on 19 June 2024. Both parties attended by phone with the consent of the Tribunal. Ms Leef and Ms Teale (representing the landlord) participated in the hearing. Bond

Landlords must pass on any bond payments received from the tenant to the Bond Centre within 23-working days of receipt.

Ms Leef was concerned by a comment that Ms Teale made when they paid the bond at the beginning of the tenancy.

Ms Teale paid the bond to the Bond Centre on the 23 rd working day after receipt. Ms Teale acknowledged that this was intentional. She stated that her reasons for doing this are irrelevant because she met her legal duty.

The bond is the tenant’s money, and the purpose behind the law is to ensure that landlords do not hold bonds and that they pass them on to the Bond Centre promptly. I acknowledge that Ms Leef was uncomfortable with Ms Teale holding the bond until the “last minute”, presumably because there was some financial advantage to Ms Teale in doing so.

However, I also accept Ms Teale’s argument that she has not contravened the Residential Tenancies Act 1986, and there is no basis for an award of exemplary damages. Termination

Ms Leef disputed the termination notice on two grounds: a. She had an agreement with Ms Teale for a two-year fixed term tenancy and Ms Teale altered the written tenancy agreement after she had signed it. b. When Ms Teale issued the notice, Ms Teale did not need the premises as a place of residence for a member of her family. Ms Teale just used this as a convenient reason to end her tenancy. a. Fixed term tenancy

Ms Leef said that: a. She told Ms Teale that they wanted a long-term tenancy. She was pregnant and she did not want to move with a newborn. Ms Teale assured her (in an email) that “there is no issue for you to rent the house as long as you need or want”. b. They agreed verbally that it would be a two-year fixed term tenancy. c. Ms Teale gave them the written tenancy agreement a week before she was due to leave the country. Ms Teale was busy and rushed, and she hurried them through the signing of the agreement. d. The agreement that they signed did not have the option “This is a fixed term tenancy ending on the ______ day of _______” crossed out. e. They later discovered that Ms Teale had crossed this out of the agreement after they signed it.

Ms Teale submitted that: a. She did not agree to a fixed term tenancy. b. She specifically took advice from property managers about what type of agreement she should have, and they recommended a periodic agreement. c. She drew up the written agreement as a periodic tenancy, including crossing out the “This is a fixed term tenancy” wording. d. She did not alter the agreement after it was signed. e. The tenants had ample opportunity to read and understand the agreement that they signed.

The Tenancy Tribunal has the power to vary or set aside a tenancy agreement if the Tribunal is satisfied that “any writing purporting to express the agreement between the parties does not accord with their true agreement” 1 .

The party who asserts that the written document does not accord with the true agreement has the burden of proof.

In this instance: a. Ms Teale denies that there was any oral agreement for a fixed term tenancy of any duration. I have no other evidence about any oral agreement apart from the conflicting recollections of Ms Teale and Ms Leef. b. It is not proven that Ms Teale altered the agreement after it was signed. I was not provided with copies of different versions of the tenancy agreement.

Therefore, I find that the terms of the written agreement must prevail. This was a periodic tenancy. b. Grounds for termination

Ms Teale gave notice on the grounds that the premises are required as a place of residence by her daughter. 1 Section 78(1)(g) Residential Tenancies Act 1986 (“RTA”)

Ms Teale explained that her daughter, who is nearing the end of her university studies, made an unexpected decision to relocate back to Whangarei. This was not something that she anticipated when she entered into the tenancy in January, but the reason why she wanted a periodic tenancy was that plans can change, and they have changed in this instance.

Ms Teale’s explanation was clear and persuasive.

Although Ms Leef has suspicions about the reasons for the notice, those suspicions do not provide grounds for me to set the notice aside. c. Termination - outcome

This is a periodic tenancy that can be ended by notice.

The landlord has issued a formally valid and effective notice to terminate the tenancy.

The tenancy will end on 21 June 2024. Garage

There is a garage at the property that has the landlord’s furniture stored in it.

Ms Teale explained that she wanted to rent the property furnished. She and Mr Kohler have re-located to Australia, and they did not want to take everything with them.

However, Ms Leef and Mr Brown wanted the premises unfurnished.

Ms Teale accepted this, and she arranged for the furniture and belongings in the house to be moved into the garage.

Ms Leef said that she understanding that after Ms Teale was settled in Australia, she would clear out the garage and they could have the use of it.

Ms Teale said that Ms Leef and Mr Brown agreed and understood that the garage was not included in the tenancy.

It is possible for a landlord and tenant to agree that parts of the property will not form part of the premises rented to tenant. However, there must be an agreement to that effect, and the landlord has the burden of proof. In the absence of any agreement, the tenant can reasonably assume that the tenancy includes all of the property, and that there are no excluded areas.

In this instance, it is not proven that Ms Teale and Ms Leef had a verbal agreement that the garage would be excluded from the tenancy. Again, the only evidence available to me about that alleged oral agreement is the conflicting recollections of Ms Leef and Ms Teale. That is not enough for Ms Teale, who has the burden of proof in this instance.

Ms Teale argued that the exclusion is recorded in the written tenancy agreement. In the property inspection report, next to the section “Garage / car port”, Ms Teale has written “N/A”. Ms Teale argued that this shows their mutual understanding that the garage was excluded from the tenancy.

Ms Leef said that the information on the property inspection report is one of the parts of the agreement that Ms Teale changed after they signed the agreement. When they signed it, this part of the agreement was blank. At the hearing, Ms Teale initially said that this was possible, then said it was more likely that the report was completed when the tenants signed it.

Even if it was proven that the report was completed when the tenants signed it, I do not agree that the wording that Ms Teale refers to constitutes an agreement that the garage is excluded from the tenancy.

The tenancy agreement includes an extra page of handwritten “Additional agreements”, which go into some detail about the swimming pool and other matters. If it was part of the agreement that the garage was excluded from the tenancy, it is reasonable to think that this would be included in the “Additional agreements” rather than being buried, in an ambiguous way, in part of the property condition report.

Therefore, I find that there is no proven agreement that the garage was to be excluded from the tenancy. The tenants had the right to use the garage and they are entitled to compensation for not having the use of it.

In considering an appropriate award of compensation I have taken into account the fact that the tenants agreed and accepted that the landlord’s property would remain in the garage for an unspecified amount of time while Ms Teale got settled in her property in Australia.

I will award compensation of $300.00. Guttering

Ms Leef said that part of the gutter at the front of the house leaks in heavy rain. She said that Ms Teale was aware of the leak and took no action to repair it during the tenancy.

Ms Teale acknowledged that she was aware of the leak. In her view it was a minor leak. She discussed it with Ms Leef and Mr Brown at the beginning of the tenancy. Mr Brown is a builder and said that he could fix it. Ms Teale said that she was happy with that, and he could send her an invoice for the job once it was completed. She did not hear any more about it.

Ms Leef then replied that the leak which Ms Teale is referring to is different than the one she is talking about – in other words, there are two gutter leaks.

Ms Teale said that she was not told that there were two leaks.

Landlords have a duty to provide and maintain the premises in a reasonable state of repair. That responsibility cannot be passed on to the tenant, but a landlord could meet the duty to repair by contracting the tenant to do the work, if both parties agree.

My findings are: a. There is limited and conflicting evidence about the leaks. It is not clear whether there are two leaks or one. It is not clear whether it is a minor leak or something more serious. b. Ms Teale reasonably understood that the leak she knew about was dealt with by an agreement that Mr Brown could do the work. There is no evidence to show that the tenants told Ms Teale that they had changed their minds about that arrangement, or that there was a new leak, or that the problem had worsened and needed to be addressed immediately.

It is not proven that the landlord failed to meet their legal duty, and there is no basis for an award of damages under this heading. Swimming pool

Landlords must provide the swimming pool in a reasonably clean condition at the start of the tenancy, and the landlord must maintain the pool fixtures in a reasonable state of repair 2 .

Tenants must keep the pool reasonably clean during the tenancy, which includes an obligation to pay for the chemicals that are necessary to achieve that 3 .

Landlords can, by agreement, assume a higher obligation than what is imposed on them by the Residential Tenancies Act 1986 4 .

In this instance the parties agreed that the landlord would pay for a fortnightly “valet” of the pool, to be carried out Northland Spa & Pool. The valet was to continue for an unspecified time. Ms Leef said that her understanding was that it would continue until they became comfortable with looking after the pool themselves.

A dispute has arisen about the cost of chemicals that Northland Spa & Pool put into the pool when they did the ‘valet’. I was not provided with any details about the dates or costs. 2 Ibrahim v Barfoot and Thompson TT Henderson TT662/95, Stewart v Kemp [2017] NZTT 4082593 3 Graham v Rent Pro Ltd [2015] NZTT Tauranga 508; Pesticcio v Tavita [2015] NZTT Waitakere 1121; Salthouse v Barfoot & Thompson Ltd [2016] NZTT 4014781 4 Section 11(2) RTA

Ms Teale said that: a. The valet should only include a check of the pool, backwash of the filter, and cleaning out any leaves/debris. b. She always understood that the tenants would pay for chemicals. The amount of chemicals required depends on the time of year and how much the pool is being used. c. Northland Spa & Pool only put chemicals in the pool because the tenants were failing to keep on top of it.

I accept Ms Teale’s argument. The landlord agreeing to pay for a regular valet does not imply that the landlord is also assuming the obligation to pay for chemicals. That remained the tenants’ responsibility.

Therefore I find that the landlord was entitled to require the tenants to pay for the chemicals used in the pool after the tenancy began. Outcome

The claim in respect of not having use of the garage is proven. The other parts of the claim are dismissed.

The landlord is to pay the tenants compensation of $300.00.

Reasons

Background

Claims and awards in Tenancy Tribunal application 4876142 — net $300.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of use of garage	$300.00	Loss of use of garage
Net award	$300.00
Total payable by Landlord to Tenant	$300.00