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Landlord held not liable for co-tenants' pets

Monday, January 11, 2021

Re: Whether a landlord is liable for breaching the quiet enjoyment of one tenant for failing to enforce the terms of the tenancy agreement against a co-tenant

Zama v Feng [2020] NZTT Wellington 4276448

This is a strange one. Bear with us.

Alessandro Zama took his landlord to the Tribunal alleging a number of breaches. On the face of it, many if not most certainly look vexatious to us (in fact, the Tribunal dismissed his entire claim). However, one stood out as notable for landlords going forward.

 
Facts
  • In January 2020 Mr Zama joined an existing tenancy as a co-tenant;
  • The tenancy agreement has a no-pet clause; 
  • Unbeknownst to the landlord, two of Mr Zama’s co-tenants kept two cats at the premises. Mr Zama knew about the cats when he moved in;
  • In August 2020, the landlord became aware of the cats through a text message from Mr Zama;
  • Mr Zama issued a 14-day breach notice to the landlord for failure to enforce the no-pet provision in the tenancy agreement;
  • The landlord issued a 14-day notice to the pet-owning co-tenants to re-home the cats but subsequently changed his mind and allowed the cats to stay.
 
The law

Under s38(2) of the Residential Tenancies Act, a landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 

 

The claim

Mr Zama made a claim against the landlord for $2,000 compensation on the basis that the cats had disturbed his reasonable peace and had it not been the landlord’s failure to enforce the no-pet provision the cats would not be at the property in the first place.

 

Outcome

The Tribunal dismissed the claim citing insufficient evidence proving

  • that the landlord had knowledge of the cats prior to August 2020; and 
  • that the cats had caused any great disruption to Mr Zama’s peace
 
Discussion

While it certainly seems pretty absurd for a tenant to make his landlord liable for actions by his co-tenants, the language of the decision suggests otherwise. 

Yes, the first parties to have committed any breach in this instance were the two cat-owning co-tenants. The obligation to enforce the terms of the tenancy agreement then falls onto the landlord once the breach became known. And it is the failure to discharge this second obligation that made up the breach at the centre of this claim. The weakness of Mr Zama’s claim lies in a lack of evidence to qualify the breach and quantify the loss, not a lack of standing to bring about the claim.

The suggestion is therefore that in the right circumstances and with the right set of facts, the Tribunal would be open to holding a landlord liable for not acting (in a timely fashion) against a tenant who has breached the tenancy agreement to the detriment of a co-tenant.

 

Take-home for landlords
  • In a co-tenancy situation, actions of one tenant could beget an obligation on the landlord to enforce the terms of the tenancy agreement to the benefit of another tenant;
  • Where a tenancy is regularly varied to accommodating the comings and goings of different co-tenants, think long and hard about whether you are prepared to play traffic cop between all the tenants before you agree to take on new co-tenants;
  • When one co-tenant complains about the actions of another, respond in a timely fashion; and
  • Any agreements/concessions made that materially change the terms tenancy agreement should be documented by way of a variation and appropriate notice be given to all co-tenants.

Overall helpfulness scale (Because let's be honest, Tribunal decisions can be a bit of a mess but still, landlords and tenants need all the help we can get!)

⭐️ ⭐️ ⭐️ ⭐️


 


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