Order of the Tenancy Tribunal

Transcription

1 Order of the Tenancy Tribunal Residential Tenancies Act 1986 Office of the Tenancy Tribunal Tenancy Tribunal at North Shore Tenancy Address 78 Marellen Drive, Red Beach 0932 Applicant Full Name Veronica Ann Gross Tenant Respondents Full Name Annette McCowan Landlord Order of the Tribunal The Tribunal orders: The application is dismissed. (Sections 25, 38, 45, 77 and 78 Residential Tenancies Act 1986 ("RTA")) Reasons: 1. This matter involved an application by Ms Gross in which she made claims against her former landlord, Ms McCowan, as to: (i) a refund of rent in excess of market rent, (ii) the premises being provided to her other than in a vacant state, (iii) a failure to provide and maintain the premises in a reasonable state of repair (in a number of respects listed below) and (iv) breach of quiet enjoyment and exemplary damages for harassment. 2. Both parties attended the hearing. By way of procedural background, I record here that the application was previously heard and determined by way of a final order of the Tribunal (dated 24 February 2017). The hearing before me was a de novo rehearing of the application following the Tribunal granting, on the application of Ms Gross, a rehearing in respect of the 24 February 2017 order. 3. In respect of each claim it was Ms Gross, because she was the applicant, who had the onus of

2 proving the claim to the required standard ('on the balance of probabilities'). 4. The tenancy commenced on 9 April 2015 and ended on 21 February Rent in excess of market rent 5. Section 25(1) RTA provides: (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 By virtue of section 25(4) RTA, Ms Gross' claim in this regard was limited to the rent paid by her for the period 4 November 2016 (the date the application was filed) to 21 February 2017 (the end of the tenancy). Ms Gross's relied upon written rental appraisals from local property managers (only two of whom viewed the premises) and market rent data sourced from the Tenancy Services website. In respect of this last source I note that Tenancy Services' website states "The data has been produced to show recent market rents for non-government owned properties for which Tenancy Services holds information. It should not be used to determine the market rent of any property or for any other purpose except as an indication of the non-government rental market based on bonds lodged with Tenancy Services". The property managers appraisals varied from $495-$575 per week (from a property manager who do not view the premises) up to $ per week. The rent paid by Ms Gross was $ per week. I find that Ms Gross failed to establish, on the evidence before the Tribunal, that it is more probable than not that the rent she paid exceeded the market rent for the premises by a substantial amount. Vacant possession - storage area 11. Section 37 RTA provides: 15. (1) The tenant shall have vacant possession of the premises on the date on which, in accordance with the tenancy agreement, the tenant is entitled to enter into occupation of the premises. (2) In this section premises does not include facilities Ms Gross's claim was that she did not receive vacant possession of the premises because a storage area with a locked door adjoining the garage was used for the storage of some goods

3 17. owned by a friend of the landlord. Ms McCowan's evidence was that the storage area never formed a part of the premises rented by Ms Gross and that, in any event, all oods were removed from this storage area by February Section 2 RTA defines "facilities" as including "all facilities provided by the landlord for the non-exclusive use and enjoyment of the tenant, otherwise than as part of the premises that are the subject of the agreement...such as any land or buildings intended for use for storage space...". On the facts before me, I find that the storage area never formed a part of the premises rented by Ms Gross and she was therefore not entitled to vacant possession of this area at any stage of the tenancy. Premises not in a reasonable state of repair A number of claims were made by Ms Gross under this heading. Section 45(1)(b) RTA requires a landlord to: provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises... It is of relevance to Ms Gross' claims made under this heading that the District Court has held that section 45(1)(b) RTA does not impose any kind of absolute liability (i.e. liability without fault) - see Barfoot & Thompson v Casey (DC Auckland, CIV , 7 November 2007). From a practical perspective this means that: (i) unless a landlord has actual knowledge (or in appropriate cases, constructive) knowledge of the need for repairs to the premises, potential liability under section 45(1)(b) RTA does not arise until the tenant has advised the landlord of the need for a repair to be undertaken and (ii) once a landlord is advised by a tenant of the need for a repair, a reasonable time must be allowed for the landlord to have the necessary repairs carried out. Except for only a few 'special' types of premises, all residential premises must comply with the Housing Improvement Regulations Roof and guttering The evidence disclosed that: (i) in early May 2015 Ms Gross advised the landlord about an area of the ceiling around the chimney that appeared to be leaking, (ii) the landlord promptly had a plumbing contractor attend the premises, (iii) there is a dispute between the parties as to whether or not Ms Gross prevented the contractor from immediately undertaking work to seal the chimney flashing, (iv) the chimney flashing was sealed by the landlord's contractor on 2 July 2015, (v) a subsequent leak in the lounge was notified to the landlord by Ms Gross on 10 September 2015, (vi) the landlord had a contractor undertake temporary repair work to the roof on 12 September with further work undertaken on 29 September 2015 and (vii) on 4 January 2016 Ms Gross advised the landlord of noise from the roof during a storm and a subsequent

4 damp smell inside the house and (viii) on 10 January 2016 the landlord's contractor inspected the whole roof and could not find any leak or defect. Ms Gross' evidence was that the gutters to the roof of the house were blocked, causing rainwater to collect rather than drain away, and that there was an area of the guttering that required repairs due to "sagging". Ms Gross engaged her own contractor to clean the gutters. 25. Ms McCowan's evidence was that the guttering was not blocked and that there was a small (approximately 2m) section of guttering by the front entranceway that had sagged due to the brackets moving and did not affect the proper functioning of the gutter. I note here that the contractor employed by Ms Gross provided an to the landlord dated 16 November 2016 in which he stated that whilst he removed some moss, leaves and dirt from the gutters, "there wasn't much rubbish but I still have to charge for removing it...". Ms Gross. They also presented invoices to show that they had spent a substantial amount of money remedying any issues with the roof. They also said that despite the fact that Ms Gross had inferred there were major issues with the roof, on inspection, they couldn t be found. 27. After considering and weighing up all of the evidence given on the issue, I find that: (i) Ms Gross did not prove that the landlord failed to provide the roof and gutter at the premises in a reasonable state of repair and (ii) there was no evidence that the landlord knew of any problems with the roof prior to the commencement of Ms Gross' tenancy and (iii) the landlord acted reasonably in undertaking repairs after being notified by Ms Gross of water ingress issues. Smoke alarms The mandatory obligations for landlords as to smoke alarms in residential premises came into effect on 1 July 2016 (section 45(1)(ba) RTA). A landlord did not, prior to this date, have any legal obligation to have smoke alarms installed. The evidence disclosed that on 1 July 2016 the premises had compliant smoke alarms installed, being the alarms that Ms Gross had had installed (without the landlord's prior consent-see section 42 RTA) in May Ms Gross did not establish that there was any breach by Ms McCowan of her obligations as to smoke alarms in the premises. Dishwasher In early May 2015 Ms Gross advised Ms McCowan that she had used the dishwasher and it had leaked. Ms MsCowan's evidence was that the dishwasher was relatively new (March 2014) and that the previous tenant had apparently used it without encountering any problems. 31. On 6 May 2015 Ms McCowan purchased a new dishwasher and arranged for it to be delivered to the premises. The new dishwasher was subsequently installed, although the parties were again at odds as to whether the delay the delay that then occurred was due to Ms Gross' unavailability to give access to the plumber. Ms Gross maintained that the removal of the top

5 piece of the dishwasher to make it fit when installed meant that it never properly worked however I find that the evidence did not support this claim and the issue of the newly installed dishwasher not working was not brought to the landlord's attention. This claim that the dishwasher in the premises was not in a reasonable state of repair throughout the tenancy was not proved to the required standard. Ventilation of clothes-dryer 33. I find that the absence of ventilation for a clothes-dryeopening the window, particularly in light of Ms MCowan's offer to install a vent to the outside in the laundry of the premises beyond which was declined by Ms Gross, did not amount to a breach by the landlord of her obligations under section 45(1)(b) RTA. Carpet In early May 2015 Ms Gross advised the landlord that she had noticed a musty smell to the carpet in some of the rooms and that she had observed what she later discovered to be carpet beetles in the house. On 8 May 2015 the landlord purchased brand new nylon carpet for bedrooms, the hallway and stairs - the new carpet was laid on 16 May A nylon carpet was chosen because, apparently, nylon carpets do not sustain carpet beetles. The carpet in the lounge was not replaced as it had only been installed a couple of years previously. Ms Gross was concerned that the carpet underlay was not replaced and, following a request by Ms Gross, Ms McCowan paid for the pest control for carpet beetle undertaken on 19 May 2015 by a contractor employed by Ms Gross. After considering the evidence given by both parties on this issue I find that Ms Gross failed to prove that the landlord breached any of her obligations in respect of the carpet in the premises. Hot water cylinder On the first day of the tenancy, 9 April 2015, Ms Gross found that she could not get any hot water in the premises. The following day Ms McCowan's electrician attended the premises to investigate. The premises have two hot water cylinders - one of them had been switched off and simply needed to be turned on whilst the other required to have a worn-out isolating switch repaired before it would work. I find that Ms Gross failed to prove that the landlord breached any of her maintenance obligations in respect of the hot water cylinders in the premises. Security stays on windows There is no legal requirement for a landlord to ensure that every window in residential premises has a security stay fitted - see section 45 RTA and the Housing Improvement Regulations

6 A landlord does, pursuant to section 46 RTA, have an obligation to "provide and maintain such locks and other similar devices to ensure that the premises are reasonably secure". There was no appropriate evidence adduced that supported Ms Gross' contention that the absence of security stays for windows at the subject premises meant that the house was not "reasonably secure". Bearing in mind the onus of proof that Ms Gross had, this claim must be dismissed. Light switch 44. On 15 May 2015 Ms Gross advised the landlord that a light switch in the house had "flashed" when turned on. Ms McCowan's evidence was that she contacted her electrician about this the same day and that it was Ms Gross who prevented the electrician from getting access to the house until 3 June 2015 to remedy this issue. Ms Gross denied this and stated that she was not contacted by the electrician until 3 June. On the evidence before me I find that Ms Gross failed to prove that Ms McCowan breached her maintenance obligations as regards this light switch. Finally under this heading I note that whilst I have no doubt that Ms Gross' view that the premises were sub-standard was genuinely held by her, this view was simply not supported by the available evidence. I was left with the impression that Ms Gross' claim was formulated based upon what she believes a residential landlord's obligations should be rather than what is actually set out in the RTA and the Housing Improvement Regulations I also note here that it is relevant that, despite Ms Gross' grievances as now set forth in her application, she entered into a new fixed term tenancy for the house in September 2016 (through to 31 March 2017, albeit that the parties subsequently agreed to end the tenancy earlier). Quiet enjoyment and harassment 47. For present purposes, the relevant parts of section 38 RTA provide: (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. (3) Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act. Ms Gross's claim was that her quiet enjoyment was breached in respect of: (i) a large number of tradespeople coming to the house during the tenancy, (ii) her needing to "supervise" these tradespeople and (iii) the visits of the landlord's friend to access the storage area. Ms Gross gave evidence as to her operating her business part-time from the house and that she was also busy throughout the tenancy arranging her own family's building project.

7 After carefully considering all of the evidence given by both parties on this issue, I find that Ms Gross did not prove that her reasonable peace, comfort or privacy was breached by the landlord. With the exception of a single attendance by a tradesperson to undertake some minor work at the premises soon after the tenancy started, all of the other visits by tradespeople were for the purpose of Ms McCowan responding to issues or problems brought to her attention by Ms Gross. When looked at objectively in the context of a tenancy of nearly two years duration, I find that the number of visits by tradespeople (and by the landlord's friend to access the storage) was not excessive or unreasonable and did not amount to an interference with Ms Gross' quiet enjoyment of the house. 55. I also find that Ms Gross had no reason to 'supervise' the work undertaken by the landlord's contractors. If the work was not done correctly then that was an issue for Ms McCowan and her contractors and not Ms Gross. It does not seem logical that any tenant who voluntarily assumes, with no reason to do so, a supervisory role for the landlord's contractors can later assert that the time spent supervising amounts to a breach of her or his right of quiet enjoyment. Because I have found that there was no breach of Ms Gross' quiet enjoyment established it follows that the claim made for exemplary damages for harassment by the landlord must also be dismissed.