What was the outcome of Tenancy Tribunal case 5273499?

The tribunal order states: The tenancy of Tepaongarangi Mouwhia Clarke at 54A Kemble Close,

How much money was awarded in case 5273499?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5273499?

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

Where can I read the official tribunal order for case 5273499?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12106540-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5273499?

The tribunal order states: The tenancy of Tepaongarangi Mouwhia Clarke at 54A Kemble Close,

How much money was awarded in case 5273499?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5273499?

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

Where can I read the official tribunal order for case 5273499?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12106540-Tenancy_Tribunal_Order.pdf.

54A Kemble Close, Mangere, Auckland 2022 Tenancy Tribunal Case 5273499 — 14-day notice

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Reasons

Both parties attended the hearing.

The landlord has applied for termination of the tenancy pursuant to ss55(1)(b) and 56 of the Residential Tenancies Act .

The tenant has applied for work orders to have the flooring reinstated in the premise and an order for her to be transferred to another social housing premise as she feels unsafe where she is living due to a home invasion in 2022.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. 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.

This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

In summary, 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. If any claim is not established to the balance of probability, it must be dismissed.

The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. TENANT’S CLAIMS Failure to maintain

The tenant claims that the landlord has breached its obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (“RTA”) to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premise.

Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15].

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .

There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .

Breaching the s45(1) obligation 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.

General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Bathroom leaks

The tenant gave oral evidence the landlord failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. Specifically that the landlord has not repaired a leak in the bathroom since 18 November 2021, after she reported it and that she and her whanau have had to live with wet flooring in the hall, bathroom, toilet and lounge since that date. She says that she has had to rip up the carpet and tile flooring as it was so wet that it was making the house damp to live in and that there are constant puddles of water on the floor all the time. Additionally she says she raised this issue with the housing manager repeatedly during her tenancy and nothing has been done to fix the leak or replace the floor coverings. She says this means the house is cold and hard to heat.

The tenant has provided photographs of the lounge, bathroom, toilet and hallway floors but there is n sign of any leaks in these photographs, only evidence that the floor coverings have been removed in these areas of the house. The tenant has not provided any written evidence of having raised this issue with the landlord.

The landlord says the most recent leak was last year and it was remediated promptly. It says that it was aware of prior issues where the bathroom basin got blocked up and that was also fixed promptly by unblocking the sink and 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. replacing the piping. The landlord’s records do not show any evidence that there were ongoing leak issues being raised with the Housing Manager that required repair, nor that the leaks that were repaired were not repaired in a reasonable timeframe nor that the leaks had led to wet flooring that required the removal and replacement of floor coverings.

Further, the landlord says it has expressed its concerns to the tenant about her having removed the floor coverings without its consent, among other things it has had ongoing concerns about.

I find that the tenant has not provided sufficient evidence to prove this claim on the balance of probabilities and dismiss it accordingly. Work Orders

The tenant has applied for work orders requiring the landlord to: a. Have the bathroom leak fixed; b. Have the carpet and tiles replaced in the lounge, hallway, bathroom and toilet; and c. Install a new security fence so she can remove her unconsented fence and gate and still be safe from further home invasions, like the one she experienced in 2022.

I have not seen sufficient evidence to substantiate that a bathroom leak exists nor that the landlord should be liable for replacing the carpet and tiles the tenant has removed without consent during the tenancy.

The landlord does not consent to paying for a new security fence or gate. It maintains the fence and gate that was in place at the start of the tenancy should be sufficient to secure the property. The tenant states that she has experienced a home invasion in 2022 and raids by the New Zealand Police and because the landlord has forced her to rehome her dogs she has been unable and unwilling to remove the security fence and gate she has installed and electrified unless the landlord increases her security. The landlord states that it is not required to install an electric fence and gate in a residential premise and that to do so would be a safety risk for the tenant and the general public.

I find that the tenant has not provided sufficient evidence to prove, on the balance of probabilities, that the landlord should be required by the Tribunal to undertake the tasks the tenant seeks work orders for, and dismiss these claims accordingly. Orders for the tenant to be transferred to a different social house.

The tenant seeks orders that the landlord transfer her and her family to an alternative social housing address. She has been asking for this since the home invasion she says occurred in 2022 that traumatised her and her daughter severely. She claims the landlord has unfairly refuse to relocate her.

The landlord states that there has been no evidence provided to it that justifies reloading the tenant to alternative social housing and that it is reluctant to do so because of the ongoing pattern of serious damage the tenant has done to the premise and her continual breaches of her tenant responsibilities.

There is no provision in the RTA which I can see, nor which the tenant has identified, from which this claim can be based. Because I cannot make any orders around having a tenant relocated to another social housing premise, this claim must be dismissed. LANDLORD’S CLAIMS

Should the tenancy be terminated?

The landlord has proven it has been working with the tenant for well over a year to try to get her to: a. Re-home puppies; b. Remove unconsented dogs; c. Remove and dispose of a dog cage at the back of the property; d. Remove and dispose of the additional fence palings on the fence and return it to its original state; e. Remove and dispose of the pergola at the back of the property; f. Remove and dispose of the car wrecks and motorbikes around the property; g. Remove and dispose of vehicle tyres around the property; h. Dismantle, remove and dispose of the electric security fence in front of the property and return it to its original state; i. Remove and dispose of the cement pond at the back of the property; j. Remove and dispose of the decorative material off the wet wall in the bathroom; Remove and dispose of hallway and dining tiles; and k. Restore the mailbox to its original state.

The landlord has applied for termination of the tenancy for: a. The tenant causing, or permitting any other person to cause, substantial damage to the premise; and b. Breaching the tenant’s obligation under s40(1)(c) of the RTA to keep the premises reasonably clean and reasonably tidy; and c. Breaching the tenant’s obligations not to intentionally or carelessly damage, or permit any other person to damage, the premise, pursuant to s40(2)(a)of the RTA; and d. Breaching clause 19 and Appendix C of the tenancy agreement by keeping dogs on the premise without having written consent from the landlord.

Section 55(1)(b) Residential Tenancies Act 1986 states: The Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that the tenant has caused, or has permitted any other person to cause, or has threatened to cause, substantial damage to the premises.

The word “shall” in s55(1)(b) of the RTA is defined as “must”. This means that if I am satisfied that the tenant or any person in the premise with her consent, has permitted or caused the damages to the premise set out in paragraph [31] (a) to (d) above, The Tribunal has no discretion and must end the tenancy.

Additionally, the Tribunal may also terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.

The landlord has provided extensive evidence that proves the tenant has intentionally or carelessly caused substantial damage to the premise that the landlord has had a quote for $17,000.00 to remediate.

The landlord has proven it has provided the tenant with a number of 14 day notice requiring her to the remedy the damage she has caused. These notices were given to her on 31 May 2024 and 7 March 2025. She did not remedy the breaches within at least 14 days of these notices.

Further, the tenant has been issued 48 hour notices on 5 September 2024 and 9 October 2024 requiring her address the health and safety concerns at the property, being the unclean state of the premise attracting rodents and the general clutter and unhygienic state of the house and the yard and to remove the unconsented dogs and puppies from the property.

The tenant has produced some evidence to prove that post the 3 April 2025 property inspection she has removed and disposed of a number of items from the yard and had removed and disposed of the floor tiles. She has not removed the concrete structure in the yard, that she says she created for a gardening competition, nor has she removed the security fence and gate as she is to scared to do so. She feels vulnerable to further home invasions without the dogs and the electric fence/gate. She has also still got the pergola and bikes in the yard that she wants to retain as she says these are not rubbish and are being used. She says she has cleaned the house and removed all the inorganic and organic rubbish, but still has rats.

I am satisfied that it would be inequitable to refuse to terminate the tenancy because of the recidivist pattern of conduct by the tenant refusing to remove unconsented structures and/or failing to remove and repair the modifications she has done to the premise and yard without the landlord’s consent.

In addition, I must end the tenancy and grant possession back to the landlord as it has proven on the balance of probabilities that in breach of s55(1)(b) of the RTA the tenant has caused substantial damage to the premise that is causing safety risks that the landlord has an obligation to address.

For all the reasons set out above, the tenancy is terminated, and possession granted to the landlord from 5pm on Friday 25 July 2025.

Reasons