What was the outcome of Tenancy Tribunal case 5055049?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5055049?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5055049?

The primary dispute was 14-day notice. Related themes: State of repair, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5055049?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11287010-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5055049?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5055049?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5055049?

The primary dispute was 14-day notice. Related themes: State of repair, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5055049?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11287010-Tenancy_Tribunal_Order.pdf.

21 Kapanui Road, Waikanae, Waikanae 5036 Tenancy Tribunal Case 5055049 — 14-day notice

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21 Kapanui Road, Waikanae, Waikanae 5036 Tenancy Tribunal Case 5055049 — 14-day notice | TenantCheck

Order

The application is dismissed.
The Tribunal is unable to grant suppression of the applicant’s name and identifying details.

Reasons

Sharon Grogon has applied for a market rent assessment. Her rent has been increased to $550.00 per week. 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 Act. 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.
The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
The parties have provided information to assist the Tribunal with its determination. These include Trademe and Tenancy Services rent information. The example of lowest weekly rent provided for the Tribunal was for $510.00 for 27A Rimu Street. However the rent from bonds received by Tenancy Services for Waikanae shows the following:

SIZEACTIVE

BONDS

LOWER

QUARTILE

MEDIAN

RENT

UPPER

QUARTILE

1 bedroom12$390$460$493 2 bedrooms150$550$575$600

Sharon stated that the premises is old and needs refreshing and updating. It is possible that the rent for the property is $20 to $30 higher than a willing tenant might reasonably expect to pay. However the difference between $520.00 and rent of $550.00 could not be said to exceed market rent by a “substantial amount”. If the percentage assessment was used it is only an increase of 5.75%.
Having considered all the information available I find there is insufficient evidence to conclude that rent of $550.00 for the tenanted property clearly exceeds market rent by a “substantial amount. Exemplary damages for failing to maintain the premises.
Sharon has claimed that the landlord failed to replace a toilet, thereby committing an unlawful act of failing to maintain the premises. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. 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.
The dispute that led to this claim centres around the condition of the toilet. The glazing had failed where the water pools inside the base of the toilet. Sharon did not like the appearance. The landlord, on recommendation from the plumber decided it did not need replacing because it was not leaking. However the landlord has now replaced it.
From the photos I am satisfied that the toilet, though not leaking, had passed its useful life. Glaze is on the toilet to make it easier to keep clean. This toilet was harder to clean because of the failed glaze. The tenant is seeking exemplary damages because the landlord did not replace the toilet as a result of her 14 day notice.
Exemplary damages are a penalty or fine. The intention of exemplary damages against landlords is to discourage a landlord from committing an act that seriously impacts on a tenant’s use or enjoyment of a property.
I have considered whether the cracking in the glaze of the toilet is the type of maintenance issue that exemplary damages were intended to address. I accept that the appearance of the toilet was displeasing to Sharon and her guests. I understand that it was frustrating for Sharon that the landlord took a different view about the urgency to replace the toilet and for a short period, disagreed that it needed replacing at all. However despite its appearance, the toilet could still be used. The cracked glaze did not remove a facility that was part of the tenancy. The cracked glaze did not present a hazard to health. There is a difference between a cracked toilet and cracked glaze. The former needs to be replaced immediately. There is not the same urgency with cracked glaze.
Having considered all the information presented I am satisfied that the toilet had reached the stage of not being in a reasonable state of repair for a tenancy and it was reasonable for Sharon to request it be changed. However I do not find that the failure to change the toilet reaches the level of seriousness that warrants ordering the landlord to pay exemplary damages. Exemplary damages are intended for much more serious breaches. The request for an order for exemplary damages is therefore declined. Name suppression.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published.(s.95, Residential Tenancies Act 1986). Sharon sought name suppression. Name suppression cannot be granted because she has not been successful with her application.

Order

The application is dismissed.
The Tribunal is unable to grant suppression of the applicant’s name and identifying details.

Reasons

Sharon Grogon has applied for a market rent assessment. Her rent has been increased to $550.00 per week. 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 Act. 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.
The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
The parties have provided information to assist the Tribunal with its determination. These include Trademe and Tenancy Services rent information. The example of lowest weekly rent provided for the Tribunal was for $510.00 for 27A Rimu Street. However the rent from bonds received by Tenancy Services for Waikanae shows the following:

SIZEACTIVE

BONDS

LOWER

QUARTILE

MEDIAN

RENT

UPPER

QUARTILE

1 bedroom12$390$460$493 2 bedrooms150$550$575$600

Sharon stated that the premises is old and needs refreshing and updating. It is possible that the rent for the property is $20 to $30 higher than a willing tenant might reasonably expect to pay. However the difference between $520.00 and rent of $550.00 could not be said to exceed market rent by a “substantial amount”. If the percentage assessment was used it is only an increase of 5.75%.
Having considered all the information available I find there is insufficient evidence to conclude that rent of $550.00 for the tenanted property clearly exceeds market rent by a “substantial amount. Exemplary damages for failing to maintain the premises.
Sharon has claimed that the landlord failed to replace a toilet, thereby committing an unlawful act of failing to maintain the premises. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. 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.
The dispute that led to this claim centres around the condition of the toilet. The glazing had failed where the water pools inside the base of the toilet. Sharon did not like the appearance. The landlord, on recommendation from the plumber decided it did not need replacing because it was not leaking. However the landlord has now replaced it.
From the photos I am satisfied that the toilet, though not leaking, had passed its useful life. Glaze is on the toilet to make it easier to keep clean. This toilet was harder to clean because of the failed glaze. The tenant is seeking exemplary damages because the landlord did not replace the toilet as a result of her 14 day notice.
Exemplary damages are a penalty or fine. The intention of exemplary damages against landlords is to discourage a landlord from committing an act that seriously impacts on a tenant’s use or enjoyment of a property.
I have considered whether the cracking in the glaze of the toilet is the type of maintenance issue that exemplary damages were intended to address. I accept that the appearance of the toilet was displeasing to Sharon and her guests. I understand that it was frustrating for Sharon that the landlord took a different view about the urgency to replace the toilet and for a short period, disagreed that it needed replacing at all. However despite its appearance, the toilet could still be used. The cracked glaze did not remove a facility that was part of the tenancy. The cracked glaze did not present a hazard to health. There is a difference between a cracked toilet and cracked glaze. The former needs to be replaced immediately. There is not the same urgency with cracked glaze.
Having considered all the information presented I am satisfied that the toilet had reached the stage of not being in a reasonable state of repair for a tenancy and it was reasonable for Sharon to request it be changed. However I do not find that the failure to change the toilet reaches the level of seriousness that warrants ordering the landlord to pay exemplary damages. Exemplary damages are intended for much more serious breaches. The request for an order for exemplary damages is therefore declined. Name suppression.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published.(s.95, Residential Tenancies Act 1986). Sharon sought name suppression. Name suppression cannot be granted because she has not been successful with her application.

Tenancy Tribunal case 5055049 — 14-day notice at 21 Kapanui Road, Waikanae, Waikanae 5036

At a glance

Tenancy Tribunal case 5055049 — 14-day notice at 21 Kapanui Road, Waikanae, Waikanae 5036

At a glance

Claims & awards

Order

Reasons

SIZEACTIVE

BONDS

LOWER

QUARTILE

MEDIAN

RENT

UPPER

QUARTILE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

SIZEACTIVE

BONDS

LOWER

QUARTILE

MEDIAN

RENT

UPPER

QUARTILE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions