A 46-page Tenancy Tribunal decision lays out how poor drafting of a tenancy agreement cost a landlord thousands. Photo / Google
A complex and bitter tenancy dispute centred around a lifestyle property 30 minutes outside Gisborne has ended with a ruling against the landlord for more than $8300 for breaches of healthy homes standards and harassment.
A 46-page Tenancy Tribunal decision lays out how the relationship between tenant Herculaas Johannes Venter and landlord David Hyland, with property manager Home Rental Service (HRS), deteriorated.
Claims concerning electricity bills, fair rent, lawn mowing, maintenance and “intimidating” interactions off the property with the tenant’s wife make up the core of the complaints.
Tribunal adjudicator Kate Lash criticised the landlord for poor drafting of the tenancy agreement, but also warned Venter for providing misleading evidence and said both had “acted at times disingenuously”.
Property manager Home Rental Services 2022 Ltd and Hyland were ordered in July to pay Venter $8382.43 in compensation and exemplary damages for breaches of maintenance obligations, Healthy Homes standards, quiet enjoyment, contravening the Residential Tenancies Act and failure to provide documentation.
The tenancy started in August 2022 and, although claims from both parties were not filed in the tenancy tribunal until October 2023, issues were present from the beginning with a faulty tenancy agreement.
The tenancy agreement said the tenant must set up their own electricity connection, but this condition was impossible to meet due to the entire property being set up under Hyland’s connection.
In an October 2023 tribunal decision, both parties agreed on how electricity would be paid from the June 2023 bill but the landlord said the Venters should also compensate him for the electricity they used from November to May.
Venter was not satisfied he was only being charged for his use and disagreed that he was liable for the charges.
Lash dismissed the claim, stating the landlord was responsible for drafting the tenancy agreement and forfeited the right to collect electricity payments when it was found to be unworkable and an agreement was not reached.
“Clause 16.1 has been an expensive drafting error for the landlord,” Lash wrote.
Lash again criticised how the tenancy agreement had been drafted concerning what parts of the property’s lawns Venter was responsible for mowing.
“The tenancy agreement is explicit in detail on many points, right down to issues such as wearing gang patches, but does not clearly detail which areas of the vast property pertain to this tenancy. This is another drafting error of the landlord’s that has led to confusion and misunderstanding.”
The landlord had attempted to issue a 14-day notice for Venter to mow the lawns on January 31 this year, but Lash found Venter was not responsible for mowing any lawns on the property, based on a recorded verbal agreement at a tribunal hearing in October last year and an existing arrangement where a tenant in another building on the property mowed the lawns.
Lash found the landlord breached Venter’s right to quiet enjoyment by issuing a 14-day notice to mow the lawns after agreeing he did not need to mow them, increasing the rent at the time when the landlord’s relationship with Venter had deteriorated and by Hyland approaching Venter’s wife directly when she was shopping.
“It is a rare case where a landlord is found to breach [RTA] section 38 to the level of harassment, but that has occurred here.”
Lash determined the landlord was attempting to evade his responsibilities under the RTA to give lawful notice to end the tenancy, with actions designed to drive Venter out.
Rent rebates were awarded for the 36 weeks between when Venter notified the landlord of an issue with water leaks in the water tank and when HRS agreed to fill the tanks if they ran out; for the 18 weeks between a 14-day notice Venter issued for holes in the driveway and when they were filled; and for the 19 weeks between a 14-day notice for malfunctioning oven seals and a tribunal hearing (plus a 12-month delay in responding to initial reports of the issue).
The home failed to comply with the HHS ventilation standard for 64 weeks due to the lack of a bathroom extractor fan and kitchen extractor fan.
An HHS compliance statement was not provided to Venter when he had requested it and an insurance statement was not provided until the case went to the Tenancy Tribunal, both in breach of the RTA.
Lash was satisfied all the unlawful acts were intentional.
“HRS is a professional property management company and as such ought to know the law they operate within.”
Other claims Venter made, including that an increase to his rent was not lawful and he should be reimbursed for mowing the lawns, were dismissed.
Venter was also warned against providing misleading evidence to the tribunal while attempting to claim costs relating to an alleged adviser “Koru”, initially for $42,500 and later for $5000.
The adjudicator could not establish the veracity of the invoices noting, among other factors, that Koru was uncontactable, was not a registered company and its “advertisement” had a specific spelling mistake Venter was known to make based on his submissions (”tendency” instead of “tenancy”).
Both sought suppression but Lash did not grant it for either party.
“Neither party has wholly nor substantially succeeded in their claims. Both parties have acted at times disingenuously. As such, I find no reason to suppress either party’s identifying details.”