Order of the Tenancy Tribunal

Transcription

1 Order of the Tenancy Tribunal Residential Tenancies Act 1986 Office of the Tenancy Tribunal Tenancy Tribunal at Christchurch Tenancy Address Flat 3, 95 Woodham Road, Linwood, Christchurch 8062 Applicant Full Name Leonie Frances Stephen Tenant Respondents Full Name Euan Godfrey Landlord Order of the Tribunal The Tribunal hereby orders: 1. Euan Godfrey to pay Leonie Stephen compensation of $4, immediately. (Sections 77(2)(n) and 78(1)(d) Residential Tenancies Act 1986) 2. Application number 13/00079/CH by Euan Godfrey is dismissed. (Sections 78(1)(i) Residential Tenancies Act 1986) Reasons: Background [1] The tenant, Ms Stephen, first made her application in January She applied for a work order and compensation. [2] A hearing was held on 24 April 2012 after which the matter was adjourned on certain conditions set out by the Adjudicator in a decision dated 24 April [3] Further directions were made by the Adjudicator for the hearing to be reconvened by way of a site visit to the premises on 18 September 2012.

2 [4] The site visit had to be postponed and eventually took place on 11 October Mr Godfrey did not attend the site visit. [5] The Adjudicator issued a decision dated 19 November 2012 after visiting the premises. Mr Godfrey was ordered to pay the tenant compensation of $ [6] Mr Godfrey applied for a rehearing and a stay of proceedings. He alleged a breach of natural justice and procedural unfairness because the hearing was not formally reconvened after the site visit and he was not given the opportunity to respond to issues arising. [7] The Adjudicator held a hearing to consider the application and determined a miscarriage of justice may have occurred. A rehearing before a different Adjudicator was ordered. [8] The rehearing was set down for 31 January Mr Godfrey, by this time had filed a counter application against the tenant. This was set down to be heard at the same time as the rehearing. [9] The Adjudicator on 31 January 2013 ordered that both matters be referred back to mediation, but provided that a hearing would be rescheduled if the parties could not reach a settlement. [10] Mediation was unsuccessful and the proceedings came back to the Tribunal for hearing before me on 11 March The rehearing of the tenant s application was adjourned part heard to allow the tenant to provide a report following an inspection of the premises by the Christchurch City Council (which had been arranged, but not yet carried out). The landlord s application was also adjourned, not having commenced, with a direction that that the landlord was to provide full particulars of his claims (his application being deficient in this regard). [11] The hearing was set down to continue on 20 May 2013, but Mr Godfrey requested an adjournment on grounds I determined were reasonable and the adjournment was granted. [12] The hearing was finally completed on 5 June The tenancy had ended and the tenant had vacated before this date. Preliminary matters Parties [13] I note at this point an issue relating to the tenant s application. This was made in the names of Leonie Stephen and Ross Cant. The previous hearing was conducted on the basis of Mr Cant being a tenant party and the order of 19 November 2012 provided the landlord was to pay the compensation to Ms Stephen and Mr Cant jointly. [14] The tenancy agreement names only Ms Stephen as the tenant. Mr Cant did live at the premises for part of the time, however, I am satisfied he was not a tenant for the purposes of the agreement and the Residential Tenancies Act 1986 (the Act). I note the landlord s application only names Ms Stephen as a tenant. I have not included Mr Cant as a party. Process [15] A rehearing of an application, as the term suggests, involves the matter being considered again. This requires me put the previous decision aside and to hear all evidence again and make my own decision after taking into account only that evidence put before me. Some of that evidence will already be on the file, which the parties may refer to. Some of the evidence may be new.

3 [16] The landlord s counter application was being heard for the first time. The applications Tenant [17] The original application specifies various matters that could be summarised under different heads of claim. However, at the hearing before me the tenant s claim essentially amounted to one for compensation for the condition of the premises. I have considered the application as a claim for compensation based on an allegation the landlord has not complied with his obligations under section 45(1)(b) and (c) of the Act. Landlord [18] The landlord seeks costs of $ comprised of: Relevant law Front door hardware $ Bathroom floor repair $ Electrical work $ Quote to repair bathroom $ [19] Section 45(1)(b) of the Act 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 and the period during which they are likely to remain habitable and available for residential purposes. [20] Section 45(1)(c) of the Act requires a landlord to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. [21] Section 40(2)(a) of the Act provides that a tenant shall not intentionally or carelessly damage the premises. [22] Section 40(4) provides that if damage (other than fair wear and tear) is proved to have occurred during the tenancy the onus is on the tenant to prove it did not occur in circumstances amounting to a breach of section 40(2)(a). Issues [23] The issues to be considered in deciding these applications are clear. In relation to the tenant s application they are: a. were the premises provided and maintained in the required standard by the landlord and did the landlord comply with all relevant enanctments? b. if not, what amount of compensation (if any) should the tenant be paid? [24] In relation to the landlord s application the issues are: a. did the tenant cause damage to the premises during the tenancy? b. if so, have the costs claimed by the landlord been established as the amount

4 of compensation the tenant should pay? Decision Tenant s application [25] I find the premises were not provided and maintained in a reasonable state of repair and the Housing Improvement Regulations 1947 (the Regulations) so far as they apply to the premises were not complied with. [26] I have considered all the landlord s oral and written submissions, oral and documentary evidence, and the evidence of his witnesses who attended the hearing. I find the evidence of the tenant, including her own oral evidence, photographs of the premises and the written reports from the City Council and Mr Wayne, a registered master builder, to be more persuasive. [27] The Council inspector, Mr Dowson, visited the premises on 20 March His report describes the premises as generally dilapidated with rusty and unpainted roofing iron, missing guttering and downpipes, flaking and unpainted window sills and bargeboards. It states the premises are at the lower end of acceptability for habitation. [28] In relation to regulation 5 of the Regulations the report states: There is mould in the ceiling panel adjacent to the bay window in the living room The bedroom windows are unable to be opened There is excessive build-up of mould on the walls and ceiling of the bathroom The bathroom wall linings are damp and in poor condition and need repair or replacement The bathroom floor needs repair There is mould on the toilet ceiling. [29] The report states the landlord is required to attend to remedying the matters identified. [30] Mr Wayne visited the property on 1 March In his report he states: The exterior is in a bad state of neglect with a lot of rotten windows and fascia boards, and cracked cladding Guttering is missing in certain areas The lounge floor is out of level and unstable The bay window ceiling is very mouldy One of the bay windows is boarded with plywood which has bulged out and is not weather-tight Holes on the lounge walls have been filled with expanding foam, which is not an adequate type of repair A collapsed chimney has been removed and the gap repaired with gib board, but not plastered or painted The bedroom floor is unstable

5 The bedroom window from frame is rotten and the whole window is at risk of falling out Another chimney has been removed and the gap repaired with bare plywood The cylinder cupboard has been rebuilt with bare plywood The bathroom is very mouldy and wallboard has rotted through to equally rotten framing in places. The bathroom window is covered with plywood The toilet ceiling is mouldy The kitchen cupboards have mould in them Most windows have newspaper stuffed around them to block draughts [31] Mr Wayne concludes that the premises have not been adequately maintained for a very long time. [32] I note that neither Mr Dowson, nor Mr Wayne appeared in person at the hearing to confirm their written reports. I have taken that point into consideration when weighing the evidence as a whole. [33] The tenant s evidence was that the premises appeared unmaintained for many years. She spoke to a written statement that describes the condition of the premises at the start of the tenancy. This was that: The back yard was littered with rubbish, old mattresses and blankets Weeds had overtaken the area There were blankets in the bathroom where it appeared the previous tenants had kept dogs No windows would open The bathroom was full of mould The bathroom floor had holes in it. [34] The landlord gave evidence and produced statements from other people to the effect that the tenant was difficult to deal with, irrational and abusive. The tenant was represented at the hearing by Ms Gatonyi from the Tenant s Protection Association. The tenant did on occasions at the hearing display some behaviour unacceptable in a hearing situation. My understanding is that the tenant may have some mental health problems. [35] However, notwithstanding that certain aspects of her approach at the hearing were inappropriate, my overall impression was that Ms Stephen was completely without guile or artifice and she that she gave truthful evidence. I found her to be a reliable witness. [36] I accept the tenant s evidence regarding the condition of the premises at the start of the tenancy. This is supported by the reports referred to above. The tenancy commenced in March I am satisfied it is not credible that the condition of the interior of the premises shown in the photographs arose during the tenancy due to the alleged failure of the tenant to ventilate the premises.

6 [37] I note here as a side matter, that the tenant s notice of the condition of the premises at the start of the tenancy does not mitigate the landlord s failure to meet his obligations under the Act (see section 49). Compensation [38] I am satisfied the tenant should receive some compensation for the landlord s failure to meet his obligations under the Act. [39] In assessing compensation I have considered the nature and extent of the defects in the premises, and the effect on Ms Stephen. The general dilapidated nature of the building is significant in itself, but I have placed particular emphasis on the condition of the bathroom. I have also considered the landlord s failure to adequately acknowledge and respond to meeting his obligations over time which will have added to the stress Ms Stephen was under. [40] I also note that I am not constrained by the amount of compensation previously ordered. Mr Godfrey applied for a rehearing, which as stated above, means I am required to put the first decision aside and make a fresh decision. [41] The act does not provide specific guidance to assess compensation and the general law applies. I note the weekly rent was $ I acknowledge that in many cases of a breach by a landlord there is not a direct correlation between the breach and the weekly rent that can assist in assessing compensation. In a case such as this however, where there is a significant breach of a fundamental obligation of the landlord, I am satisfied it is appropriate to refer to the rent when assessing compensation as the tenant has not received what she bargained for. That is, a dwelling that is properly maintained and complies with all legal requirements relating to residential dwellings. On this basis I assess fair and reasonable compensation at 20% of the weekly rent or $30.00 per week for the term of the tenancy. [42] The tenancy commenced on 26 March There is dispute about the date the tenancy ended. The tenant says it was 29 April The landlord says it was 5 May Thus the number of weeks the tenancy lasted was either 161 or 162. I make no finding on this as the issue was not before me. The difference is not significant in any event, being 1 week or $ [43] I award compensation of $ , being $30.00 per week for 161 weeks. Landlord s application [44] The landlord s application can be disposed of quickly. I find the landlord s claim that the tenant caused damage to the bathroom requiring repairs at a quoted cost of $ to be completely spurious. Such a claim, which appears simply to be an attempt to offset the potential award of compensation to the tenant, runs close to being frivolous or vexatious and gives me cause to consider an award of costs under section 102(2) and (3) of the Act. I have decided against this course in this case as Mr Godfrey has not had the opportunity to make a submission on the matter. [45] However, this bathroom claim does bring the landlord s other claims generally into question. Notwithstanding this, I find I do not need to take this issue into account when deciding the other claims. [46] I have already stated I found Ms Stephen to be a reliable witness. I accept her evidence that

7 she did not damage the door; that the hole in the bathroom floor was there at the start of the tenancy (and was not caused by her washing machine leaking); and that she did not damage any electrical fittings. [47] The landlord s application is dismissed accordingly.