How much money was awarded in case 5050828?

Is To Pay Mackys Real Estate Limited…: $27.00 awarded to landlord

What type of tenancy dispute was case 5050828?

The primary dispute was 14-day notice. Related themes: State of repair, Healthy homes, Mould & damp.

Where can I read the official tribunal order for case 5050828?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11099506-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 5050828?

Is To Pay Mackys Real Estate Limited…: $27.00 awarded to landlord

What type of tenancy dispute was case 5050828?

The primary dispute was 14-day notice. Related themes: State of repair, Healthy homes, Mould & damp.

Where can I read the official tribunal order for case 5050828?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11099506-Tenancy_Tribunal_Order.pdf.

34B Coquette Street, Warkworth 0910 Tenancy Tribunal Case 5050828 — 14-day notice

Q: What was the outcome of Tenancy Tribunal case 5050828?

The tribunal order states: Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Order

Claims and awards in Tenancy Tribunal application 5050828. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
is to pay Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton	$27.00		is to pay Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton

Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton is granted possession of the premises at 34B Coquette Street, Warkworth, Warkworth 0910 at 11:59pm on 06 December 2024.

Brian Langdon is to pay Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton $27.00 (being reimbursement of the filing fee).

Brian Langdon’s application for a declaration that the notice issued by Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton to terminate the tenancy at 34B Coquette Street, Warkworth, 0910 is of no effect, and retaliatory is dismissed.

Reasons

The tenant attended the hearing. Ms Mackinnon attended the hearing for the landlord.

The tenant has applied for a declaration that the landlord’s notice to terminate the tenancy is of no effect and is retaliatory.

The landlord has applied for the tenant’s application to be dismissed and for possession of the premises from 11:59pm on 06 December 2024.

There were several discrepancies between the oral evidence provided by the tenant and the landlord. The Tribunal applies the usual civil law standards and expectations. One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.

The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again, if the claim is not established to the balance of probability, it must be dismissed. Retaliatory notice – the law

Section 54 of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal may declare a notice to terminate a tenancy is of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.

The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.

The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.

A notice of termination given for genuine and fair reasons will not be considered retaliatory. For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that the notice was not retaliatory. Judge Ongley stated he was: ... quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her. She found that Mr Kerr was not a suitable tenant for those flats because he could not tolerate activities by other tenants which Mrs Woodman believed were unavoidable. She believed that she was faced with the alternatives of either having continuous disputes among tenants, or otherwise bringing Mr Kerr’s tenancy to an end. I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.

Section 54(2) of the RTA also provides some protection to a landlord. It provides that the Tribunal may decline to declare the notice retaliatory if it finds that the tenant’s action “was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice”.

What are the complaints or actions relied on by the tenant and are they legitimate?

For a notice to be retaliatory, the tenant’s complaint or action taken must be legitimate. In Hardy v White [2020] NZTT 4222218, the agreement between the parties was that only one person was allowed to reside at the premises. The tenant allowed her son to reside at the premises which resulted in an argument with the landlord. The tenant complained to the landlord that she had the right to visitors and received a termination notice shortly after making the complaint. The Tribunal found that the termination notice was given for a valid reason (property needed for family members) and that was the motivation for giving the notice. So, it was not retaliatory. The Tribunal also found that it is not a legitimate complaint when the tenant is in breach of the tenancy agreement.

The tenant says the following complaints / actions wholly or partly motivated the landlord to terminate the tenancy: a. Parking more than one vehicle at the property; b. Parking vehicles on the road; c. Playing his music loud; d. Complaining about the timing of the inspections; e. Complaining about the drainage; and f. Refusing to use the Smartvent system;

Parking more than one vehicle at the property: The tenancy agreement provides that “[t]he maximum number of vehicles parked on the property must not exceed: One”.

The tenant said he kept ‘project cars’ (cars that he was working on) on the premises in addition to the car he drove on a daily basis. The tenant said that approximately one year ago, the landlord visited the property and said he had to reduce the number of vehicles on the property to one.

Ms Mackinnon said that the landlord was frustrated by the tenant having more than one vehicle at the property. On 4 June 2024, Ms Mackinnon wrote to the tenant advising him that he was in breach of the tenancy agreement by having more than one vehicle on the premises and giving him 14 days to notify that breach.

During the hearing, the tenant asked if he believed he was in breach of the tenancy agreement by parking the project cars on the property. The tenant invited me to conclude that he was not in breach of the tenancy agreement because the project cars were not vehicles because they were not in full working order. I find that the project cars were vehicles whether they were in working order or not.

I find that the tenant’s action of parking more than one vehicle on the property was in breach of the tenancy agreement and could not be a legitimate action.

Parking vehicles on the road. The tenant said that at times, he did comply with the requirement to have only one vehicle on the premises and he did this by moving the project car to the street. The tenant said that this may have annoyed the landlord as they also lived on the street. However, there is no evidence to support the allegation that the landlord was motivated to issue the termination notice in retaliation for the tenant having his project car on the street.

Playing music loud. The tenant also referred to complaints he had received about his music.

The landlord said that approximately two months ago, she received a complaint from an elderly neighbour to say she was being disturbed by loud music from the premises.

On 12 September 2024, the landlord wrote to the tenant advising him of the complaint and referring to section 40(2)(c) of the RTA which provides that the tenant shall not: ... (c) cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.

The tenant did not deny playing the music loud. He said that he was entitled to play it loud because he lived by himself.

I find that the tenant’s action of playing his music loud was in breach of his obligations under the RTA and could not be a legitimate action.

Complaining about the timing of the inspections. The tenant said that he works shift work and his preference is to have Mondays free as this is when his shifts change and he has an extended period at home. The tenant said he liked to play his music and drink alcohol during the day on Monday.

The tenant said that the landlord would provide notice of the inspections but would not advise the exact time and that he had asked for the inspections not to take place on a Monday. The tenant said he believed he was entitled to know what time the inspection would take place.

The tenant said that Ms Mackinnon flatted with one of his co-workers who would know when his shifts changed. The tenant said he believed Ms Mackinnon may have deliberately tried to schedule the inspections on a Monday. Ms Mackinnon denied this. She said the inspections were automatically generated by Palace software. Ms Mackinnon said that tenants were automatically provided with 48 hours’ notice of the inspection via text message. Ms Mackinnon denied the tenant had requested the inspections take place on a different day or that he had complained about the timing of the inspections.

Section 48(2) of the RTA provides: The landlord may enter the premises - ... (b) for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry.

The tenant did not have a right to know the time of the inspection. However, any request or complaint about the time of the inspection would still be legitimate because (unlike with the issues regarding the music and the vehicles) the tenant was not in breach of his obligations under the tenancy agreement or the RTA.

Given Ms Mackinnon’s denial that the tenant requested the inspection day be changed and the lack of any corroborating written evidence (i.e. text message or email correspondence) between the parties on the issue, I find it is more likely than not that the tenant had not complained about the timing of the inspections.

Complaining about the drainage. The tenant said that on the inspection which took place on or about 03 July 2024 he advised Ms Mackinnon that there was an issue with the drainage. Specifically, that there were storm water puddles under the house. The tenant said he repeated this at the inspection which took place on 25 September 2024.

Ms Mackinnon said that the tenant mentioned the drainage issue at the 03 July inspection and said that he had already told the landlord about the issue. Ms Mackinnon said that the she spoke with the landlord and they said there was nothing wrong with the drain but that the tenant had blocked it.

The landlord has responsibilities under the RTA to maintain the premises and to comply with the Healthy Home Standards. A complaint about the drainage could be a legitimate action.

Complaining about and refusing to run the Smartvent system. The landlord said the Smartvent system was installed prior to the tenant moving in. The Smartvent circulates air through a filter system. The tenancy agreement provides that the ventilation system is to “run at all times”. The landlord said this clause was added because the house is an older property with condensation issues and the continuous running of the system was needed to prevent mould.

The tenant said that he was also not allowed to have an instruction manual to change the settings. The tenant said that the Smartvent overheated the house in the summer. The tenant said that he turned it off because he was experiencing excessive coughing at night, and he wanted to see if turning the Smartvent off would reduce the coughing. The tenant said his coughing got better after he turned the Smartvent off.

The tenant has an obligation under section 40(1) of the RTA to keep the premises ‘reasonably clean and tidy’. Reasonably clean includes keeping it in a condition that does not encourage mould or damp.

Section 11 of the RTA is a restriction on agreements or arrangements the parties to a tenancy agreement can make. Section 11 provides: (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.

In short, this provision confirms that a landlord cannot enforce any provision in the tenancy agreement which is inconsistent with the RTA unless approved by the Tribunal. Furthermore, a tenant cannot by law waive any rights they have available under the RTA, meaning a clause in a tenancy agreement which limits a right, cannot be waived by the tenant.

In Safer home Limited v latalya Arohe Tina Rewai [2021] NZTT Porirua 4292331, 4294725. the landlord included in the tenancy agreement “carpets are to be cleaned to a professional standard on vacating by a tenant”. This Tribunal found that this clause contravened the RTA because it placed an obligation on the tenant that exceeded the tenant’s obligation under the RTA to ensure the carpet was reasonably clean.

I consider that requiring the tenant to run the Smartvent system at all terms is inconsistent with the RTA because it exceeds the obligation on the tenant to ensure the premises are reasonably clean and tidy.

I also consider the clause is likely to contravene section 38 of RTA because it interfered with the tenant’s right to quiet enjoyment of the premises. The tenant’s oral evidence at the hearing was that continuously running the Smartvent system resulted in the premises being overheated in the summer and in him becoming sick. There was no evidence provided to support the tenant’s assertions regarding the Smartvent system and I make no finding on these points. However, the tenant clearly believed the Smartvent system overheated the premises in summer and made him sick. I find the requirement to run the system interfered with his right to quiet enjoyment of the premises.

The tenant asserting his right to turn off the Smartvent system is a legitimate action. Did the landlord issue the termination notice wholly or partly because the tenant complained about the drainage and/or asserted his right not to run the Smartvent system?

Ms Mackinnon says that on 08 August 2024, the landlord’s son came to see her. During this visit the landlord’s son advised that both of the landlords were in the hospital and gave her his contact details should she need to be in touch regarding the tenancy.

Ms Mackinnon said that on or about 10 September 2024, the landlord came to see her in person and that during this visit they told her that they wanted their son to move into the premises to support them following their recent stay in hospital. Ms Mackinnon said she explained to the landlord that the agency had a policy of advising tenants personally before serving notice to terminate the tenancy. Ms Mackinnon said she agreed with the landlord that she would advise the tenant of this at the next inspection which was due to take place on 25 September 2024.

Ms Mackinnon said that on 25 September 2024, she arrived for the inspection at approximately 3.30pm with a colleague. Ms Mackinnon said when she arrived the music was playing loudly, and the tenant was intoxicated. Ms Mackinnon said she asked the tenant to turn the music down and he did so. Ms Mackinnon said he tried to give her the speaker. She said she then noticed that the Smartvent system was not running and told the tenant that he had to run it as per the tenancy agreement. Ms Mackinnon said that that the tenant said there was used carpet in the insultation in the roof space and it was impacting his breathing. Ms Mackinnon said she told the tenant there is correct insulation, the Smartvent system was to be kept running to reduced moisture in the air and that the system had a filter.

Ms Mackinnon said the tenant was intoxicated and appeared to be agitated. Ms Mackinnon said she did not advise the tenant of the landlord’s intention to terminate the tenancy at the inspection as had been agreed with the landlord because she felt intimidated.

The tenancy is a periodic tenancy. Section 51(1) of the RTA provides that a: ... landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family; or ...

On 02 October 2024, Ms Mackinnon sent a termination notice to the tenant advising that the landlord wished to reclaim the premises “... to be used as a principal place of residence for the owner or a member of the owner’s family”. The tenant was given 63 days’ notice in accordance with section 51(1) of the RTA and advised that the last day of the tenancy would be 06 December 2024.

Ms Mackinnon said that the landlord’s son is staying with the landlord until the tenant vacates the premises.

The tenant does not believe that the decision was made to terminate the tenancy prior the inspection on 25 September 2024. He said that the landlord’s son has lived with the landlord for a long period of time. The tenant believes the landlord issued the notice in retaliation for the complaints / actions set out at paragraph 12 above.

Ms Mackinnon provided an email from the landlord’s son, Chris Burton, saying that following his parents being admitted to hospital, they were advised they needed help at home and the decision was made for him to move closer to them. Given that Mr Burton did not attend the hearing, I place limited weight on this evidence. However, I note that it does corroborate with Ms Mackinnon’s version of events.

I consider it is more likely than not that the landlord did advise Ms Mackinnon of their decision to terminate the tenancy before the inspection on 25 September 2024. At the time the decision was made, the landlord was not aware that the tenant had turned off the Smartvent system and the tenant had not yet advised the landlord that he refused to use the system going forward.

At the time of making the decision to terminate the tenancy, the landlord was aware of the tenant’s complaints regarding the drainage. However, there is nothing to suggest this was a significant issue for the landlord and I consider it is unlikely the tenancy would have been terminated in relation to this issue.

I find that the notice was not given in response to the tenant complaining about the draining or refusing to use the Smartvent system. The notice was not retaliatory. I find the notice was given for a valid reason (property needed for family member). The landlord’s application for a possession order from 11:59pm on 06 December 2024 is granted.

Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton has wholly succeeded with the claim. For this reason, I must order reimbursement of the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5050828. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
is to pay Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton	$27.00		is to pay Mackys Real Estate Limited (T/A Bayleys Property Management In The North) As Agent for Lois & Clive Burton