Order of the Tenancy Tribunal Residential Tenancies Act 1986 Office of the Tenancy Tribunal Tenancy Tribunal at Wellington Tenancy Address Flat 1, 164 Glenmore Street, Northland, Wellington 6012 Applicant Full Name Harish Negi Tenant Respondents Full Name Specialist Property Managers Ltd Landlord Order of the Tribunal The Tribunal hereby orders: 1. Specialist Property Managers Ltd to pay Harish Negi to pay the sum of $400.00 immediately as compensation for lack of facilities in the tenancy: (Sections 77(2)(k) and 78(1)(d) Residential Tenancies Act 1986) 2. The remainder of the tenants applications are dismissed. (Section 78(1)(i) Residential Tenancies Act 1986) Reasons: 1. The tenant applies to the Tribunal, seeking an order that the fixed term tenancy period be reduced. The tenant also seeks other orders in the nature of compensation, and a declaration. I will consider the various applications in turn. Reduction of fixed term tenancy 2. Prior to the commencement of the tenancy being the subject of this application, the tenant
3. 4. 5. 6. 7. 8. 9. 10. 11. 12. applied for tenancy with the Wellington City Council. No properties were available, but the tenants kept their application live with the Council. The tenants then entered into a fixed term tenancy agreement for these premises in Glenmore Street, Northland. The tenancy agreement records that as a fixed term tenancy between 18 March 2017, and 18 March 2018. The tenancy agreement also records that the tenant was not to assign or part with possession of the tenancy, during the course of the fixed term tenancy. During the course of the fixed term tenancy, the Wellington City Council offered the tenants a Council property, and that was accepted by the tenants who moved into those alternate premises. The tenants have requested the landlord terminate the fixed term tenancy in Glenmore Street early, on the grounds that they would otherwise be paying for two tenancies. The landlord (who is a property manager) put that request to the owner, who declined the request. The tenants have applied to the Tribunal seeking an order that the period of the fixed term tenancy be reduced. The tenant states that when the tenancy agreement was first into, that the landlord s representative indicated the period of the tenancy could be truncated. There is a disagreement between the parties as to the exact undertaking made orally. The landlords representative at the hearing, who is the same representative who is said to have made the undertaking, states that the tenant was advised that any request to reduce the term of the tenancy would need to be approved by the owner. The tenant on the other hand, considers the offer to reduce the term of the tenancy, was not couched in terms that the landlord s approval was necessary, and an early termination could occur on request with payment of a fee. Section 66 of the Residential Tenancies Act 1986 (the Act) provides the tribunal with the ability to terminate, or reduce the term of a fixed term tenancy: " where [the Tribunal] is satisfied that, because of an unforeseen change in the applicants circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced." As I indicated during the hearing, it is difficult to see that unforeseen circumstances have arisen for the tenant. Firstly, notwithstanding the Council advising that the prospect of receiving a Council tenancy was low, given the tenants maintained their application with the Council for a Council tenancy, it cannot have been unforseen when such a property was offerred. Secondly, if the unforeseen circumstances are viewed to be the hardship that has arisen for the tenants, again that would not be an unforeseen circumstance. The tenants must have known that by entering into a lease for a second tenancy with the Council, that they would be paying two payments of rent, unless they were successful in having the first tenancy period reduced. 13. I have considered whether the landlord s representative had made and undertaking to the
14. 15. 16. tenants, that they fixed term period could be truncated on request. I m not persuaded that such an undertaking was made. It is manifest, that when parties enter into a fixed to agreement, that there is an expectation of the agreement being for the full period. It would not be unusual for a landlord to say to a tenant, that they would be welcome to request a reduction of the period of the tenancy, that would be considered, and decided whether the reduction could be granted at that time. It would however, be extremely unusual for a landlord to enter into a fixed term tenancy but at the same time, tell the tenant that if they wanted to end the tenancy early, they could do so on request. Even if a further listing fee was paid, that would defeat the purpose of having the security a fixed term tenancy normally provides. It is not of itself unusual for tenants and landlords to agree to vary the period of a fixed term tenancy. Normally a request is made by one party to the other, then following negotiation, an agreement to variation of the tenancy period is reached. However there is no obligation on either party to accept such a request. For the above reasons, I find it has not been established that there are grounds to reduce the term of the fixed term tenancy. 17. 18. 19. 20. Power usage The tenant seeks compensation for proposed higher power usage on the grounds that the tenancy is cold and damp. In support of the application, the tenant has provided a comparison between power bills for a different property. I find this claim has not been established for the following reasons. a. b. c. I agree with the landlord, that power usage over the winter months would be expected to be higher, noting the invoices are for the period between May and September. It is difficult to compare two different dwellings power usage. Rarely will two dwellings be the same, such as for example, orientation to the sun, installation, size, etc. I am not persuaded that there is sufficient evidence to support some material defect with this tenancy, which would require compensation for power usage. I find this claim has not been established. 21. 22. Compensation for services and appliances not working The tenant says that when they moved into the property, they were unable to use the cooktop, washing machine, or hot water, because there was a problem with the gas or water pressure or the appliance. The tenant says it took four weeks for that problem to be remedied. The landlord does not dispute there were problems with the services / appliances, but advised she was uncertain as to the period over which the services would have been unavailable.
23. 24. 25. 26. I have no reason to doubt the representation of the tenant, that they were without they mentioned facilities, between 18 March 2017, and 14 April 2017. That would be entirely consistent with the contemporaneous email correspondence on file. Cooking, washing and hot water facilities must be provided by the landlord, and I accept they would not. It is reasonable therefore, that the tenant receive compensation for the period under which they were paying rent, but not getting those facilities from the landlord. The tenant has claimed compensation of $100 per week, totalling $400, noting also that they would need to purchase takeaway food given the lack of cooking facilities. That claim is in my view, reasonable. The Tribunal orders the landlord to pay $400 compensation for the lack of facilities. 27. 28. 29. 30. Misrepresentation regarding installation The tenant says that the landlord misrepresented the state of insulation in the property on the tenancy agreement. The landlord confirmed that in December 2017, arrangements had been made for installation to be installed into the tenancy. I m not persuaded the landlord has misrepresented the installation in the tenancy agreement. The tenancy agreement includes a section on page 4, where the landlord can tick the location of the installation, no boxes are ticked. That section also requires the landlord s signature and date, and again that is blank. It is the case that Parliament have introduced minimum standards in relation to installation in residential tenancies. However, the landlord is correct, that these minimum requirements will only come in to force in tenancies such as this tenancy, on 1 July 2019. I cannot see that the landlord has failed to comply with its requirements in relation to installation under the relevant regulations, nor misrepresented that situation on the tenancy agreement. This application is dismissed. 31. 32. Compensation for being unable to use one bedroom The tenant says that one of the bedrooms was damp and unusable. The landlord has produced a builders assessment report from Dwayne Allan dated 15 November 2017. In my view, this report seems objective, and includes photographs. I can see no reason why this report should not be accepted. The assessor reports a range of deficiencies with the premises, including a lack of ventilation, accepting that the dwelling is subject to heavy condensation as a result. In relation to the bedroom the subject of this claim, the assessor states: South facing bedroom which receives no direct sunlight. Vegetation close to the house, though not observed the tenant complains of mould and condensation.
33. 34. 35. 36. 37. I accept that there were likely to be general difficulties with this tenancy with respect to ventilation and condensation. That is confirmed in the builders report, which also reports areas of mould in the laundry, but also identified an issue with exterior laundry wall, which I take to account for that mould issue. However the builder while recording the report from the tenant of moisture and mould in the bedroom, did not identify any such issues on his assessment. I have also reviewed the email correspondence provided by the tenant, and conclude that no issues were raised with the landlord regarding the bedroom being uninhabitable. If there was a significant issue with this room, I would have anticipated seeing it raised in correspondence, as the tenant had done with other problems with the tenancy. I also recognise that the landlord has responded to issues with ventilation raised by the tenant. Extractor fans have been installed, as has a Shower Dome. That landlord has also obtained a quotation for a home ventilation system for the dwelling. However I conclude there is insufficient evidence to show this particular bedroom was uninhabitable. 38. 39. Refund of the letting fee The tenant claims a refund of the letting fee, on the basis that the tenant does not consider that the landlord s representative, has done a proper job of insuring the property was in order. In particular, mention was made of the problems with the gas line, and that the Electric cooktop was not functioning. I do not consider there is any ability in law, to order the letting fee to be returned to the tenants, as is claimed. If there are defects with the property, then the tenant is able to pursue the landlord for compensation for those defects with the Tribunal, as has occurred in this case. 40. 41. 42. Declaration of non-liability with respect to dampness and moisture. The tenants seek a declaration from the Tribunal, that when the tenancy comes to an end, that they will not be liable for any damage to the property from mould, or moisture. Certainly the Tribunal could provide a declaration of non-liability, but that is only an application the Tribunal would consider granting, at the end of the tenancy. The Tribunal would wish to evaluate the totality of the evidence at the end of the tenancy, to be satisfied that if there was a potential liability arising from mould or moisture, that there was no responsibility on the part of the tenant. What the tenant is requesting the Tribunal to do at this stage, is to provide an order in the abstract, for a situation, which may be quite different at the end of the tenancy. However, at the hearing the landlords representative acknowledged that it was recognised there were mould issues in this tenancy as confirmed in the builders report, that would not be the responsibility of the tenants, as it was an issue with the dwelling per se.
43. For the above reasons, the Tribunal declines to provide the declaration of non-liability, at this time.