Order of the Tenancy Tribunal

Transcription

1 Order of the Tenancy Tribunal Residential Tenancies Act 1986 Office of the Tenancy Tribunal Tenancy Tribunal at New Plymouth Tenancy Address 36 Rangitake Drive, Spotswood, New Plymouth 4310 Applicant Full Name Thomas Andrew Majeski Caitlin Elizabeth Jones Tenant Tenant Respondents Full Name Anthea Douds Landlord Order of the Tribunal The Tribunal hereby orders: Anthea Douds to pay Thomas Majeski and Caitlin Jones the sum of $ immediately calculated as follows: To be paid to Tenant: Breach - retaliatory notice $ Breach quiet enjoyment - power and work in the lounge $ Breach - tenancy property not reasonably maintained $ Amount payable by Landlord to Tenant $ Thomas Majeski and Caitlin Jones' claims for unlawful entry and because the tenancy property was not reasonable at the start of the tenancy are dismissed.

2 3. Anthea Douds' application is amended by consent to allow a late claim for rent arrears and for curtain cleaning. 4. Anthea Douds' claim for rent is withdrawn Anthea Douds' claim for the curtain cleaning and because the tenants did not allow access is dismissed. The Bond Centre to pay the bond of $ ( ) to Thomas Majeski and Caitlin Jones immediately. (Sections 22 and 127(4)(a) and 38 and 45(1) and ( 1A) and 77(2)(k) and 78(1)(d) and (i) and 109 Residential Tenancies Act 1986) Reasons: This was the second hearing of these applications. At the first hearing I dismissed Ms Douds' application for termination and found a 42 day notice was not valid. By the second hearing Mr Majeski and Ms Jones had given notice and moved out. This tenancy ran from mid March until mid December Ms Douds had her lawyer, Ms Mooney, at the second hearing as the claims against her were over $ I allowed Mr Majeski and Ms Jones to clarify and amend their claims at the first hearing. They were concerned that the tenancy property was not reasonable at the start, that Ms Douds delayed repairs unnecessarily, that she breached their quiet enjoyment by carrying out renovations and that the arrangements for the power bills were unfair. Ms Douds claimed these tenants would not allow reasonable access to the tenancy property, that rent was owed and a small amount of compensation. At the hearing I dismissed a number of claims and gave reasons. Essentially, Ms Douds could not prove the claim for curtain cleaning and she had the better evidence about the unlawful entry. All rent had been paid. Applicants to the Tenancy Tribunal must prove their claim to the required civil standard of proof. This means each party has the task of proving the claim. In proving the claim they must provide evidence that persuades me, on the balance of probabilities, that what is said is correct. Was the tenancy property in a reasonable condition at the start of the tenancy? The law says the landlord must ensure the tenancy property is in a reasonable condition at the start of the tenancy - section 45(1)(a) and (b) of the Residential Tenancies Act 1986 (the Act). There are two issues here - the carpet and the fireplace.

3 8. Mr Majeski and Ms Jones gave evidence there was a terrible smell in the carpet when they moved in and this prevented them from enjoying the tenancy property for a couple of weeks as they could not unpack and it was embarrassing when people visited. They noticed the smell almost immediately and asked Ms Douds to do something about it. Ms Douds gave evidence there was a smell, which she could not explain, but which she thought smelt like cat. She immediately rectified the issue by cutting out the offending piece of carpet and replaced the carpet in the whole room two weeks later I find there is no evidence Ms Douds knew about the smell before Mr Majeski and Ms Jones moved in. The previous tenant did not have pets. The verbal evidence about whether or not the house smelled at the start of the tenancy is conflicting. I find Ms Douds acted promptly and reasonably when she realised there was a smell. This claim is dismissed. The fireplace was condemned by a specialist in the middle of winter as it could not be used safely. Ms Jones said the man who swept the chimney told her he had previously told Ms Douds the fire needed serious maintenance. This is hearsay evidence. Ms Jones provided me with a copy of an from the man who swept the chimney which says the fire had been damaged as it had been used without a top baffle 'over a long period of time now'. Unfortunately he was not present to answer questions, such as how long is a long time and did Ms Douds know? I find Mr Majeski and Ms Jones have not proved Ms Douds should have known the fire was not usable at the start of the tenancy and this claim is dismissed. Were the repairs to the heat lamp carried out in a reasonable timeframe? The law says landlords must maintain their tenancy properties in a reasonable state of repair during the tenancy - section 45(1)(b) of the Act. If a landlord fails to do this, including not completing work in a reasonable timeframe, then it is an unlawful act and the landlord can be ordered to pay exemplary damages in the maximum amount of $ section 45( 1A). The evidence about the dates is agreed. Ms Douds was told the 3 in 1 light, fan and heat lamp in the bathroom had sparked on 9 May and it took until 8 July before the fitting was able to be used. In the meantime an electrician went to the tenancy property on 22 June and replaced the fitting with a single bulb. Ms Douds gave evidence Ms Jones had misled the electrician and it was her fault the repair took so long. I find Ms Douds should have followed up with both the electrician and Mr Majeski and Ms Jones to ensure the repair had been completed. Three months in winter without a bathroom fan or heating - and 6 weeks without a light - is not reasonable. I find this is a breach of a landlord's duty to maintain the tenancy property in a reasonable condition. Was the removal of the fire place and the installation of the heat pump reasonable? The fire was condemned on 13 July and a new heat pump was installed on 7 September. In between the tenants did not have the use of the fire over winter as they had anticipated. Ms Douds offered heaters, which the tenants understood to be electric heaters, and they declined because they did not want to increase their power use. They gave evidence they chose the

4 tenancy property because there was a fire. Ms Douds gave evidence she thought she would replace the fire but got talked into a heat pump instead. She said the installation happened as soon as was possible for the business she was dealing with. Landlords are no longer legally required to provide a heat source in the lounge. However, Mr Majeski and Ms Jones chose this tenancy property because there was a fire and were not able to use it for two months in winter. There will have inevitably been increased power costs, which were unexpected as they had purchased wood to burn. I find two months in winter was too long to wait for the installation of a heat pump. Ms Douds had no good explanation as to why it took so long. The main priority should have been to provide a heat source and the removal of the fireplace on 17 August was really a secondary concern. Ms Douds gave evidence the tenants agreed to the renovation taking place. However, I find Mr Majeski and Ms Jones agreed to their heating problem being fixed and they were not fully the fire place removal would cause so much disruption. I find the length of time it took to install the heat pump was unreasonable and the delay was a breach of the landlord's duty to reasonably maintain and repair the tenancy property. I find exemplary damages should be allowed in the amount of $ I have taken into account the inconvenience to the tenants, the fact that a heat pump was eventually installed, Ms Douds delay and the public interest that tenants should have warm homes. The award is at the lower end of the scale as I have also taken into account Ms Douds' inexperience as a landlord and my understanding that no previous orders of this nature have been made against her - section 109(3) of the Act Did the removal of the fireplace breach the tenant s right to quiet enjoyment? A landlord cannot cause or permit any interference with a tenant s reasonable peace, comfort or privacy in the use of the premises. Contravention of this duty in circumstances that amount to harassment is an unlawful act - section 38 of the Act. After the fireplace was condemned on 13 July the tenants sent a text asking that any work on the fireplace be carried out on Tuesdays and Wednesdays, being their days off work. I find this was reasonable in the circumstances, given the dispute when the bathroom was repaired. On 19 July Ms Douds advised she would be away on holiday until 6 August. On 17 August the old fireplace was removed and the walls stripped back to framing in one corner of the lounge. Over the next month or so, on a Tuesday or a Wednesday, gib was installed and sanded and stopped. On 22 August Mr Majeski asked when the heat pump would be installed as no one had contacted them. The heat pump was installed on 7 September. The area around the old fireplace was still being renovated, a bit at a time, each week. On 15 September Mr Majeski and Ms Jones said they did not agree to any more work being done in the lounge.

5 Mr Majeski and Ms Jones gave evidence that the builder was not efficient and each time someone came to work on the lounge it was dusty and dirty and they had to clean up. Ms Douds gave evidence the job took so long because the tenants were restrictive about when work could happen. The installation of the heat pump took a day. The removal of the fireplace and subsequent work took almost two months and was not completed. I find it was a renovation rather than maintenance and repair and I find there was a breach of the tenant's quiet enjoyment. Was the arrangement for the payment of power a breach of quiet enjoyment? Ms Jones and Mr Majeski gave evidence there was another tenant living on the same section, in a different dwelling, and there was only one power meter for both dwellings. The Act says there has to be a way for the power to be exclusively attributable to the tenants and the parties agree that it was possible to accurately divide the power between the dwellings. I find there was no breach by Ms Douds of rules about outgoings being exclusively attributable - section 39(3) of the Act. Ms Jones and Mr Majeski thought there might have been a breach of section 45(2) of the Act. The real issue for them is that the arrangement about power was difficult and stressful, so I find this claim is better described as a possible breach of quiet enjoyment - section 38 of the Act. The arrangement was that Ms Jones and Mr Majeski would text Ms Douds when their power bill arrived, give her the readings and she would then give them the money for the power used at the other dwelling. Ms Douds gave evidence she told the tenants about the arrangement at the start of the tenancy and they agreed. However, the tenants found this to be unnecessarily stressful during the tenancy and on one occasion they had to chase Ms Douds because she had not paid them. When they asked for separate meters or for the power to be put in her name and then gave her a 14 day notice, she asked if they wanted her to give the tenant in the other dwelling notice to leave. This put them in an impossible position. Ms Douds provided evidence which shows there was communication about 8 power bills during this tenancy. 28. I find this arrangement was a breach of the tenant's quiet enjoyment of the tenancy property. Even though it might have seemed a minor ask at the start, I find it became an imposition. Further, asking Ms Jones and Mr Majeski to decide if their neighbour's tenancy should end was not reasonable Was the tree cutting and ground work a breach of quiet enjoyment? The same law applies. Mr Majeski and Ms Jones gave evidence that on 10 October Ms Douds came to the tenancy property, early on a Saturday morning, and started chopping down trees and using a wood chipper. Because this was just after they had been given notice they felt Ms Douds was being deliberately disruptive. Ms Douds gave evidence she had told her tenants right at the start of the tenancy that some large trees might need to be cut during their tenancy. Ms Douds gave notice by text on 4 October which said she would be at the tenancy property 'sometime next week' to do 'section maintenance' and would be 'repairing the back fence and cleaning up the gardens around Johns place'. There was a follow up text on 10 October to say 'may be at Johns today for

6 clean up as fine spell in the weather' I find Ms Douds gave sufficient notice she was doing work on the section. Even if Mr Majeski and Ms Jones did not understand that trees would be cut, they were some way from the house, down the bottom of the large section and by the other tenant. The major work on the trees happened only once during the tenancy. I find there was no breach of quiet enjoyment here and this claim is dismissed. Also related to this garden work is an incident where Ms Douds called the police to the tenancy property and Mr Majeski gave evidence that someone with Ms Douds threatened him. I find the police report and the fact that Mr Majeski served a trespass notice on this person after the incident are not sufficient to prove there was a threat. This part of the claim is also dismissed. Should Mr Majeski and Ms Jones get exemplary damages because there was harassment? Section 38(3) of the Act applies. The Act does not define harassment. The meaning of harassment was considered by the District Court in 2010, where the Court preferred and used the Oxford English Dictionary definition, meaning to 'trouble, worry or distress' or to 'wear out, tire out or exhaust' - Macdonald v Dodds Hamilton CIV , 1/2/ I have found there were two breaches of quiet enjoyment in relation to the payment of the power account and the renovation in the lounge. Taken together there were breaches of quiet enjoyment each month of the tenancy. I accept Mr Majeski and Ms Jones' evidence they found this very hard and distressing. I find their experience at the tenancy property can be described by the definition of harassment given above. The maximum amount of exemplary damages which can be awarded is $ I allow I have considered the stress felt by the tenants, the landlord's lack of understanding about the renovation and her refusal to find a better way to manage the power accounts, the clear public interest that tenants should have the quiet enjoyment of their tenancy, the ongoing nature of both issues and my understanding that no orders of this kind have been made against Ms Douds in the past. Was the notice given to Ms Jones and Mr Majeski retaliatory? The Act sets out rules for ending tenancies and says the Tribunal can declare a notice to be retaliatory if it finds that, in giving the notice the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power or authority, or remedy conferred on the tenant by the act or any complaint by the tenant against the landlord relating to the tenancy. Exemplary damages can be awarded in the maximum amount of $ section 54.

7 The time frame is agreed. On 15 September, after almost two months of work in the lounge, Mr Majeski sent a text at 11.52am to say he and Ms Jones were looking for a new place. He said 'we do not want any work done to the house during this time. just because we said you could put the heat pump in doesn't mean we ok'ed you renovating the living room or having workers here every week for over a month. covering our stuff with dust and dirt every week...i will give you our notice when we find a place...don't send any workers around... as soon as we find a place you will get the notice'. At 11.53am Ms Douds replied ok. At 12.10pm Ms Douds sent this text message - 'I'm giving you 42 days notice for a family member moving in which is perfectly legal. Will put the notice in your mailbox today. My family member has been looking for some time and asked me yesterday. Good luck with the house hunting'. Ms Mooney submitted the notice was not in fact retaliatory. She said Ms Douds had a genuine need to provide a house for her daughter and produced a letter from a specialist explaining the need for respite care for the daughter. Ms Mooney said it was Ms Douds' intention that her daughter use the house when she gave Ms Jones and Mr Majeski the 42 day notice. The house is currently being used by Ms Douds' daughter some of the time. A witness for Ms Douds gave evidence that these tenants were very difficult for Ms Douds to deal with. He said he had heard Mr Majeski's very angry late night phone message about the bathroom fitting and Mr Majeski had also served a trespass notice on the witness. His evidence was given to show there were other, fair, factors which motivated Ms Douds to give notice. Ms Douds gave evidence she genuinely believed on 15 September the tenants were moving out and so she gave them a 42 day notice. This is not persuasive, as I find Mr Majeski's text was very clear about giving notice once they found another house. Ms Douds also gave evidence she found Ms Jones and Mr Majeski to be good tenants, in that they always paid their rent. Even if I find Ms Douds was partly motivated by the tenants exercising their right to quiet enjoyment and by the complaint relating to the work in the lounge, then I can find the notice was retaliatory. Ms Douds might well have had other reasons which motivated her to act. However, it is the timing of the 42 day notice, given 18 minutes after Mr Majeski's text, which is significant for me. The timing strongly suggests that Ms Douds acted in response to Mr Majeski's text. I find Ms Douds was either wholly or partly motivated to end the tenancy because Ms Jones and Mr Majeski tried to exercise a right. Exemplary damages are appropriate. I allow exemplary damages in the amount of $ , which is at the lower end of the scale as I am not aware of any previous orders of this nature against Ms Douds. I have also considered the effect of the breach on the tenants, Ms Douds conduct and the public interest that tenants should be able to raise issues with their landlords without fear of losing their homes - section 109(3) of the Act.

8 Should Ms Jones and Mr Majeski also get compensation as well as exemplary damages? Ms Jones and Mr Majeski have claimed compensation and exemplary damages for each breach. I find the awards of exemplary damages are sufficient and the further claim for compensation is dismissed. Did Ms Jones and Mr Majeski unreasonably refuse access to tradesman? The law says tenants cannot unreasonably refuse access if proper notice is given - section 48(4). Ms Douds gave evidence the tenants did not always reply to texts asking for access for tradesman. However, they never actually refused anyone access. I find they did not breach the Act and this claim is dismissed.