Tenant's Claim Dismissed for Lack of Evidence

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[2025] NZTT 5143008

TENANCY TRIBUNAL AT NELSON | TE TARAIPIUNARA RETIHANGA KI WHAKATŪ

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The application is dismissed.

Reasons:

1. Both parties attended the hearing. The application named the two sons of the tenant as co-applicants. They are minors and not named tenants. Their names have been removed from this order.

2. A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

3. The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in [NAME] v [NAME] ([NAME]) TT233/02. Judge Mather stated:

“…[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the

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applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

4. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

5. The applicant sought work orders, compensation and exemplary damages for claimed failures of the landlord and impacts on quiet enjoyment. Specifically, the failings claimed were the landlord’s failure to resolve a poultry nuisance originating from a neighbouring property, failure to maintain, nor address a flooding problem.

Background

6. This tenancy commenced on15 August 2024. The section is of a good size, with the house and main appurtenances located on the street (or higher) side with hard/all-weather surfaces from the house. The section then drops away down into a large, grassed area.

7. The tenant has experienced a number of problems to date. It is accepted the main issue has been an ongoing problem of a [NAME]’s poultry entering the section, typically roaming outdoors but at times entering the house. [NAME] complained of the mess left that required time and effort. She mentioned a possible health impact but while a letter from her doctor was provided, that was silent on any physical health impacts and focused on the reported mental impacts from the ongoing stress. Unfortunately, it appears the tenant experienced avian problems at her previous home, with wild ducks roosting under that house.

8. The tenant has been proactive is seeking a solution to date. This application arose from a belief (somewhat based on advice) that the landlord was responsible for resolving the problem. As well as seeking recourse through this Tribunal, an active file has been opened with the Nelson City Council (NCC). The tenant has had an ongoing dialogue with the appropriate staff member although it appears that the file may now be treated as resolved by the NCC.

9. Other issues related to maintenance and external flooding. There has been some recent landlord activity in relation to maintenance.

Poultry

10. It is unknown if there have been similar issues for previous tenants at this property. The landlord was unaware of any.

11. The tenant has also been assisted by her local MPs office (as it did at the time of the avian problem at the previous house). Their most recent advice, as provided, was in a letter to the tenant dated 10 February 2025. That recounted their direct contact with the NCC, and the advice back that the matter was

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considered resolved. That letter notes the ongoing demarcation dispute in the tenant’s mind – is it the NCC or the landlord’s problem to resolve?

12. The position of the landlord is that it has contacted the NCC as well, in support of the tenant. It does not consider it has a statutory responsibility beyond that.

13. I have no reason to doubt the tenant’s recounting of the problems and adverse impacts on her. The question for this specialist Tribunal is whether the landlord has failed and should be accountable for such impacts.

14. The first consideration is s 38 Residential Tenancies Act 1986 (“RTA”) that relates to quiet enjoyment. Specifically, s 38(2) requires 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.

15. [NAME] with the poultry is not a tenant of this landlord. That prevents any direct interaction with that [NAME] per s 40(2) RTA.

16. I do not consider the landlord has “caused or permitted” any [NAME] actions that have upset the tenant. In my view, it is effectively a [NAME] dispute rightly sitting with the NCC. The NCC have the statutory provisions to investigate and enforce the appropriate by-laws, as necessary.

17. The second landlord requirement of the RTA to consider is any landlord failure to maintain (s 45 RTA), specifically as it pertains to the fencing. The tenant suggested better fencing might prevent roaming poultry from entering the property. Photos of the fence were provided. The requirement under the Fencing Act 1976 is that fencing be “adequate”. It defines an adequate fence as “a fence that, as to its nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve”.

18. I consider the fencing in place to be adequate. It may be that the need of [NAME] to better secure his poultry necessitates further investment in appropriate cage or wiring but that sits with him.

19. I do not consider the landlord has failed to meet its obligations under ss 38 or 45 RTA and there are no grounds for any work orders to be made. Given this, there is no case for compensation. I stress that does not mean there may have been, or continues to be, an impact, on the tenant but rather the cause and solution does not sit with the landlord.

20. A healthy discussion at the hearing took place on how the tenant may assist the NCC in working with her if the problem persists. The evidence provided to date has been limited.

Other maintenance

21. It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is

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reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

22. The landlord provided a Maintenance Timeline for the premises. The tenant confirmed that the other maintenance issues raised had been addressed. Some other concerns such as getting a better heat pump were raised but there is no evidence of any landlord failure here. A Healthy Homes Statement dated 17 February 2025 reports the heating capacity to be 60% greater than required.

23. Having reviewed the timeline from date of reporting to date to action, I find there are no grounds for any work orders or compensation here. The tenant is a good communicator and has advised the landlord in a timely manner, as necessary. The landlord has responded where appropriate.

Flooding

24. The aerial view of the property confirms the large, grassed backyard. This is a feature of some other properties in the surrounding area and tends to reinforce the drop in ground level as recounted. The geographical features in the area will have an impact on surface and storm water movement.

25. The landlord submitted they had no record of any flooding being reported by the tenant before this application. A photo provided by the tenant shows a flooded area. While this is undated, the landlord did advise of prior communication between it and the NCC (January 2022) regarding the stormwater drainage and I accept it as more likely than not that the back section of the property may be susceptible to surface water pooling and occasional flooding. The house is well elevated from that area.

26. There is no evidence of any landlord failure here. The landlord’s request for timely notification in the future so that it can engage with the NCC is reasonable.

27. There are no grounds for compensation here.

Summary

28. The tenant has not been successful in this application. While the application is dismissed, I am not dismissive of the problems recounted. By all accounts she is a good tenant, but she has been frustrated as to who and how some issues should be raised and addressed.

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29. It appears some well-intentioned advice has created some expectation or confusion for the tenant regarding who should be involved in repulsing the occasional poultry invaders, if [NAME] fails to. [NAME] appears committed to solving the problem and has made some configuration changes. There have been no recent poultry visitations so that is promising.

30. In the first instance, I encourage the tenant to continue to engage with [NAME] as she has been doing and see if they can mutually resolve any future problems. For clarity, if the dispute requires any further regulatory action, it is my view that the NCC is the appropriate channel.

31. The relationship between the tenant and the landlord will hopefully improve by ensuring the landlord is advised of tenancy issues while the NCC take point on any poultry issue. The comingling to date has created unfortunate frustration. The importance in future of working with the NCC as the lead on “poultry matters” and providing it with adequate evidence of any impacts and frequency will be to everyone’s benefit.

[NAME]

20 March 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: