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Some interesting TT decisions.

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  • Some interesting TT decisions.

    I've done a bit of trawling recently, and here are a few interesting decisions I've found.

    Few points though:
    • The summary in the first column below was for my reference only. If you don't like the way I've phrased things, tough. Read the TT decision quoted, and form your own conclusion on the content.
    • No apologies for spelling / grammar - refer above bullet point.
    • And finally, just because there's been a TT ruling on an issue in the past doesn't mean it's binding / definitive. A different adjudicator might rule differently.


    This might be old hat to the more experienced among you, but I certainly found some of them enlightening.

    Enjoy.

    Summary Tribunal # Notes / Details
    LL needs to get tenant's consent for anything other than necessary repairs and maintenance. This includes external repairs. 15/00269/WN Reason 15 - For work that goes beyond necessary repair or maintenance, the
    landlord should obtain the consent of the tenant
    . Weatherall v Irvine, Tenancy Tribunal, Palmerston North, TT175, 265, 265/29595, 24/07/95. The Tribunal has also held that external repairs are not normally "necessary repairs": Bhaila v Wilson & Farrell, Tenancy Tribunal Auckland, TT13, 48-49/198, 17/07/98.
    When renovating, tenants have to put up with a degree of noise or general nuisance without compensation, provided they have had prior notice, subject to the length and degree of intrusion. Note that this is outside the property. 15/00291/WN Reason 22 - The District Court has held in Lucas v Paterson [2005]DCR 76 that where landlords are renovating property, tenants are required to put up with a degree of noise and general nuisance without compensation, with the judge commenting “Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.” However, there are cases in contrast to Lucas v Paterson in which construction activity on or adjacent to premises has given rise to a breach. In Marino & Ors v Wellington City Council DC, Wellington, CIV-2013-085-660,23 September 2013 , it was considered relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.
    Landlord can claim bond unilaterally 15/00226/WN Reason 4 - There is also no obligation on the applicant to
    notify the tenant of the claim: that is the responsibility of the Bond Centre.
    Even if tenant damages something, LL has to fix it (although tenant is liable for cost) 15/00269/WN Reason 32
    If a LL replaces something rather than repairing it, they need to have a cost justification for doing so. 15/00279/WN Reason 3
    under section 109(2) of the Act, no application for exemplary damages for failing to lodge a bond may be raised more than 12 months after termination of the tenancy. 15/01035/WN
    When a tenant vacates a fixed term tenancy before the end of the fixed term, they are liable
    for the rent until the start of a new tenancy at that property.
    15/00032/AK
    Even fully depreciated carpet can sometimes be claimed for. 15/00340/AK Reason 8 - Although the carpet had no economic value it was not yet at the point that the landlord needed to spend money to replace it.
    Stuff installed by tenant cannot be claimed for (by tenant) if no agreement is made by the landlord that they will be paid for. 15/00447/AK Reason 8 - as no such term was agreed between the parties when the landlord allowed them to be installed and there is no provision of the Residential Tenancies Act 1986 or the tenancy agreement to compel the landlord to contribute to the cost of the window screens.
    Must have doorstops, otherwise holes in walls can't be claimed. 15/00473/AK Reason 9
    Tenant liable for rent up until date of eviction 15/01127/AK Reason 1
    Tenant must pay for locks changed after terminantion of tenancy 15/01127/AK Reason 5
    Tenant not entitled to a reasonable opportunity to rectify shortcomings in cleaning 15/01195/AK Reason 3
    Service of notice by email 15/01188/AK By virtue of the High Court's decision in Schmidt v Hair (HC Auckland,
    CIV-2010-404-6804, 3/5/2011, Miller J), section 136( operates to deem this email to have been served, in the absence of evidence to the contrary, on the next working day after the date it was sent.
    when giving notice under the RTA because family want to move in, that you can't do 42 days if the property is owned by a trust or company For some reason I didn't record the TT number for this.
    You can apply for eviction on 21 days rent in arrears even if they pay on the same day. 15/01188/AK Reason 8 - As the learned author of Residential Tenancies: The Law and Practice (David Grinlinton, LexisNexus NZ Ltd, Wellington 2012) has noted (at page 203) the Tribunal has adopted a strict approach to the non-payment of rent holding that an application may be filed under section 55(1)(a) even if the tenant pays overdue rent on that day that has the effect of reducing the arrears below 21 days.
    You MUST sign TA at the time when bond and first rent payment is received. 15/01506/AK
    Any damages and repair claims must be individually itemised 14/00114/WN Reason 19
    If tenancy is terminated by tribunal, they won't award subsequent loss of rent, unless the place has been abandoned, or has been damaged and needs to be fixed. 14/00137/WN Reason 17
    It is common for tenants to pay a fee to cover a landlord’s costs of finding a replacement tenant but tenants are still liable for rent until a replacement is found. 14/01272/WN Reason 18
    Difficult to claim rent is too high if TA signed recently. 14/00295/WN Reason 6. Might have been applicable to a relatively recent Chch TT case, now suppressed?
    As a general principle of common law, an inspection is not final, in the sense of conclusive. 14/00436/WN Reason 27 - It can be a trigger for release of the bond but it is not, in my opinion, a final release of the tenant from any of its obligations which are later established to have not been satisfied. In this respect, my understanding is that the principle is the same as that which applies in other areas of law such as construction law, where a certificate of practical completion or even a defects liability certificate (which certifies that all identified defects have been rectified) do not preclude a later claim against the contractor if further defects are discovered.
    It's OK to ring your tenant regarding rent arrears, and if they don't answer to go round to their property 14/00597/WN Reason 7
    Tenants must return keys at end of tenancy, even if not specifically asked. 14/00710/WN Reason 13 - Once a tenancy ends the tenant has no right to access to the premises and the law recognises that the tenant must give up any right to do so, and the means to do so such as keys. It is not the landlord’s responsibility to seek out recovery of any keys or other means of access. Section 40(1)(e)(iv) of the Residential Tenancies Act encapsulates the law in that regard, and is implied in the tenancy agreement
    Landlords need to provide keys for all external doors 14/00710/WN Reason 16 - A landlord has an obligation to provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure: section 46(1) Residential Tenancies Act 1986. The tenants only had 3 keys. The evidence is that there were at least 5 external doors. The landlord needed to provide incoming tenants with the means to secure all 5 doors.
    Tenants who have not vacated the premises have to give 21 days notice 14/00711/WN Reason 4 - Accordingly, it follows that where the tenant has not vacated the premises they continue as a tenant under a periodic tenancy and are required to give a minimum period of 21 days notice to terminate the tenancy.
    If you don't make rental demands in a timely manner, you may not be able to claim that rent. 14/00740/WN Reason - (the landlord) failed to mitigate its loss, as required by section 49, by failing to make demand of the tenants timeously and likewise seeking an order from the Tribunal if the tenant had failed or refused to make good the payment.
    Even if a tenant has to move out quickly, the property still has to be left clean and tidy. 14/00900/WN Reason 34 - A tenant's obligation is to keep the premises in a reasonably clean and
    reasonably tidy condition. This means during the tenancy.
    Normally only allowed around 2 weeks vacancy (which can be charged to tenant) after tenancy to fix up tenant's damage. 14/00900/WN Reason 42
    In the case of a periodic tenancy one tenant can sever joint tenancy by notice, but that is not possible for an FTT 14/01454/WN Reason 31 / 32
    If rejecting early termination of FTT it would be a good idea for the landlord to show what hardship they were to suffer as a result. Nonewithstanding, the tenant has to prove that the early termination is 'unforeseen' 15/00457/AK Reason 17
    Carpet life is from 10-25 years, depending on quality 14/01384/WN Reason 20
    And some no-brainers everybody should know
    Tenant can't be charged for fixed daily charges of utilities paid for by landlord. 15/00518/WN Reason 14
    If utilities used by tenant aren't separately identifiable, a statement can be made that their use is included in the rent. However, the landlord then can't interfere with the use of these for any reasonable purpose. 15/00448/AK Reason 10
    Tenant can't be charged for shared facilities, unless those costs are identified as exclusive to the tenant 15/00518/WN Reason 14
    Commercial carpet cleaning can't be demanded by default. 15/00153/AK Decision 4
    A landlord is obligated to provide a means of heating for the living room of the property 14/00989/WN Reason 9
    rent cannot be said to have been “paid” by a tenant until it is received by a landlord. 15/01188/AK Reason 9

  • #2
    And one more:

    LL's insurance company must apply to TT if they want to recover costs of damage by a tenant. 14/01695/WN Reason 2 - When an insurance company is attempting to recover the costs of repairs arising from damage allegedly done by a tenant, and when acting pursuant to rights of subrogation (the right to take proceedings against any person in the name of the insured) from a landlord, the application should be made to the Tenancy Tribunal, because the Tribunal has exclusive originating jurisdiction in residential landlord/tenant disputes.

    Comment


    • #3
      Thanks BigWal. I have come across a few interesting ones in the past but they tend to fall to the last page of forums. I have suggested to PT this might be a good sticky thread that people can add to. [Stuck - cube]
      Last edited by cube; 08-11-2015, 12:57 PM.

      Comment


      • #4
        Originally posted by artemis View Post
        I have suggested to PT this might be a good sticky thread that people can add to.
        I'd second that suggestion.

        Comment


        • #5
          Ive been advised by a tenancy adviser that the TT tribunal uses the IRD depreciation schedule for establishing whether damage can be charged--ie-if paintwork is completely tidy ,but is fully depreciated after 10 yrs you cant charge for the damage (sounded really unfair to me,especially if you have photos and one would assume tenants need to leave the premises in reasonably the same condition as when they came.)Ive heard of tenants who liked graffiti :<(

          Comment


          • #6
            skid, what do you mean by a tenancy adviser? Bearing in mind that the call centre is known to be inconsistent, and that adjudicators also do not seem universally consistent.

            In any case, if there are guidelines for adjudicators these will (or should) be publicly available. Though may need a OIA request.

            Comment


            • #7
              FWIW, I've seen quite a few judgements that refer to the IRD schedule. 5 years for paint is definitely a common theme.

              Edited to add - but that's mostly in Wellington - other locations may have different TT precedents they apply.

              And final edit - found one such ruling - 15/00259/WN - Reason 14
              Last edited by BigWal; 07-11-2015, 08:57 PM. Reason: Clarification

              Comment


              • #8
                Earlier this year the University of Otago in Wellington and Victoria Uni published research on housing quality based on a year of TT decisions in Wellington and Dunedin. While the decisions themselves are not identified by number or name, there is a lot of detail in the full paper about how the TT interprets housing quality and related issues, including 'reasonable state of repair'.

                The Uni of Otago in Wellington is pushing a huge barrow relating to rental warrants of fitness. A lot of footnotes does not necessarily indicate a balanced point of view. Nor does public funding of research and analysis. Just saying.

                Press release is here:

                http://www.otago.ac.nz/news/news/otago090401.html

                The full paper is available online - search for:

                “Decent expectations? The use and interpretation of housing standards in tenancy tribunals in New Zealand”

                Comment


                • #9
                  Originally posted by BigWal View Post
                  FWIW, I've seen quite a few judgements that refer to the IRD schedule. 5 years for paint is definitely a common theme.

                  Edited to add - but that's mostly in Wellington - other locations may have different TT precedents they apply.

                  And final edit - found one such ruling - 15/00259/WN - Reason 14
                  That really makes a mockery of the system--to equate damage with depreciation----So ''tenant shall leave premises(which surely includes walls) in reasonably tidy condition UNLESS painting work is over 5 years old--then....go for it!----How many of us paint all our walls etc every 5 years?

                  Comment


                  • #10
                    Thanks BigWal, for posting.
                    ""Tenant not entitled to a reasonable opportunity to rectify shortcomings in cleaning 15/01195/AK Reason 3""


                    Nice to see this clarified as i have a tenant who thought i was obligated to wait for their quotes to seek repairs remedy. Once tenancy ended its game over as far as this goes, unless landlord allows at their discretion.

                    Comment


                    • #11
                      Hmm.

                      Anybody noticed that the search method for TT tribunal decisions has changed?

                      2016 decisions are no longer indexed (or searchable) by Year/Number/Location, but by a single seven digit number. And there seems to be a large gap between successive numbers.

                      Which makes it more difficult to 'page through' recent decisions, as you've got to type in a lot more internet addresses, one by one, before you get a TT decision to read through.

                      I don't suppose it has anything to do with posts like my original one above?

                      You know, posts which try to record decisions of substance the TT has made, and thus establish some sort of precedent / history on which future decisions can be measured against.

                      You know, as happens with judicial rulings. They're largely based on preceding decisions and interpretations of the law, unless it becomes apparent that some aspect (of the law) hasn't been considered in the courts before.

                      Precedent. A basic part of our justice system.

                      Just saying.

                      Comment


                      • #12
                        BigWal if that's the case then how are landlords supposed to protect themselves from bad tenants if they wont be able to look them up on the database?

                        Comment


                        • #13
                          No mate - you can still look up individual people / companies / addresses. No problem with that.

                          It just makes it harder to read through all successive (i.e. a range of) TT decisions to find anything more than bread and butter decisions such as "hasn't lodged bond" / "is charging electricity without an individual check meter" / "is x days in arrears" / "has caused $x amount of damage". i.e. decisions and rulings which aren't straight forward.

                          The non-bread-and-butter decisions contain the fish hooks that people should be aware of, and which aren't easily found. (even more so now)

                          ------

                          FYI - post edited to replace "and individual check meter" with "an individual check meter"

                          Comment


                          • #14
                            Thanks for clarifying that BigWal. Just out of interest what was the ruling on charging for power without an individual check meter?
                            A couple of my properties i include the power in the rent and was informed by TT that was fine as long as i did not nominate a value for the power as it cannot be ascertained accurately so it has to be zero $, the same goes for water if no meter.
                            Seems a little off in some respects but i checked with TT a few times they informed me that if you did nominate a fixed value for the power the tenant could in theory argue that they were not using that amount which goes back to a circular argument to some degree.

                            Comment


                            • #15
                              Sorry - can't help with regards to your check meter question. From memory there are a few subleties, but you really should have a check meter, unless you have some specific terms in your rental agreement.

                              Again, from memory there were quite a few decisions that came down along the lines of "you need a check meter", so I didn't comment on them in my original post above, as I assumed that was a reasonably common TT issue / discussion.

                              My personal take-away though is that a check meter is recommended whenever you have a power supply to multiple rentals, and is also recommended instead of including the power component in the rent (may exclude boarding houses?).

                              But to hark back to my previous comment - how is anybody supposed to know when (and if) to use a check-meter when they can't search previous TT rulings either:

                              a) by painstakingly going through each one by typing in successive web addresses and reading the decision
                              b) by searching for relevant key words in TT decisions.

                              a) is possible (but now just got harder, as I explained before), but b) is simply not possible, and I can see no other reason why other than the TT doesn't want people to find prior precedent to challenge decisions they make.

                              And again, publicly accessible case precedent is good enough for the court, so why isn't it good enough for the TT?

                              Comment

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