Published tribunal order
Tenancy Tribunal case 4319802 — Smoke alarms at 640C East Coast Road, Pinehill, Auckland 0630
Decided 21 Nov 2023 · Published 21 Nov 2023 · Application 4319802
- Smoke alarms
- Rent arrears
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant’s name and identifying details.
- Access Real Estate Limited Yi Zhang must pay [The tenant/s] $2,932.42 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. Background
- On 15 March 2022 I made an order that the tenant’s bond be released to her. That has now happened.
- The matter was adjourned for a further half day hearing to give the parties the opportunity to present the evidence they thought had already been filed. The claims
- [The tenant/s] claims that she has overpaid rent and that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986.
- The landlord claims compensation for unpaid rent and for smoke damage to the stove and interior of the premises. The landlord also claims the cost of installing a smoke alarm. Rent
- The agreement was for an initial fixed term from 28 January 2020 to 27 July 2020. It then became a periodic tenancy which ended on 3 October 2021 after the landlord had given the tenant notice to vacate on the basis that extensive repair/ refurbishment work was required, which could not reasonably be undertaken with the tenant in occupation.
- The agreement provides for a rent of $320.00 per week. The copy of the tenancy agreement I have been provided with has handwritten on it, not initialled, “the rent will go back to the original price when the back property been built.” The agreement does not specify what that original price was.
- The landlord’s evidence is that a rent of $350.00 per week was initially agreed but was reduced to $320.00 while the tenant would be impacted by the owner’s construction at the back of the property. The landlord says that the building work was finished in November 2020 but the tenant was given the benefit of the rent not being increased until the final inspection was done on 2 February 2021.
- It is the landlord’s responsibility to accurately complete the agreement. There is no mention in the agreement of a rent of $350.00 per week. Accordingly, the rent could only be increased above $320.00 per week by giving a rent increase notice in accordance with s.24 RTA.
- A notice of rent increase was given to the tenant on 14 January 2021 raising the rent to the “original of $360.00 per week” from 5 March 2021. That notice was not compliant with a section 24 because less than 60 days’ notice of the increase was given.
- The landlord then emailed the tenant on 16 April 2021 to say that the rent would be changed to $360.00 per week starting from 11 June 2021. Again, that notice is not compliant because less than 60 days’ notice was given.
- I find that the rent payable by the tenant throughout the tenancy was $320.00 per week and a refund is due accordingly. Repair/ maintenance claims
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant claims compensation and/ or exemplary damages for what she says are breaches of the landlord’s obligations by failing to provide the premises in a reasonable state of repair, lack of hot water in the kitchen, moisture giving rise to mould and resulting health issues from leaks in the bathroom and kitchen and cracks in the external walls, infestations by slugs and mice, broken window hinges/ stays.
- She also says no smoke alarm was installed.
- In terms of the agreement the tenancy was to start on 28 January 2020. The tenant was provided the keys on 27 January 2020.
- The hot water cylinder in the kitchen failed on 28 at January and flooded. The landlord tried to dry the carpet but the outcome was not satisfactory and so the carpet was replaced with laminate flooring, The tenant was refunded $295.00 for I having to rebook her furniture movers and $50.00 to reimburse her for second hand curtains she had bought for a window where none were provided.
- I find no fault on the landlord’s part in how it responded to that accident and no further compensation is due with regard to the condition of the premises at the start of the tenancy or the curtain purchase costs.
- The tenant should be compensated for having to fit and hang the curtains as well as buy them, and a further modest award is made.
- A new hot water cylinder for the kitchen was not installed until 16 June 2020. Again I find no fault on the landlord’s part as the delays were not if it’s making. The tenant is however entitled to compensation for the inconvenience caused to her. The hot water cylinder was a small one that only serviced the kitchen. There was an alternative hot water source. That reduced the inconvenience to the tenant of there being no hot water in the kitchen but it was still significant.
- Having heard the parties’ evidence about the effect of that on the tenant’s use and enjoyment of the premises, I award compensation at $25.00 per week for the period until the new cylinder was installed.
- There has been a history of leaks at the premises with a major flood event having occurred in 2016 which the landlord says caused the watermarking on some of the ceilings. There was further leaking during the tenancy. The landlord arranged for its contractor [The contractor] to visit and inspect. [The contractor] gave evidence at the hearing by phone.
- [The contractor] went to the premises on 27 May 2021. He found two leaking spots on the roof surface over the kitchen and bathroom which he sealed with sealant. He is not aware of any further leaking.
- The evidence satisfies me that the landlord took appropriate steps to respond to the tenant’s concerns about the leaking. There is no specific evidence of los and no evidence to link what the tenants says were respiratory issues, with a breach on the landlord’s part.
- The tenant will have been inconvenienced by having to deal with the leaks and having them fixed. However, I do not find it proved that the leaks were of such an extent that anything more than a modest award of compensation for the inconvenience or exemplary damages should be made. I fix that compensation at 1 week’s rent.
- The tenant says that external cracks led meant that the premises were damp and unsafe. There is however no evidence to corroborate that view.
- While [The contractor] was fixing the roof leaks, the tenant spent some time conversing with him. It seems that as a result she forgot that she had something on the stove in the which then burned. The smoke caused soot marks on the walls and ceilings and the stove itself was damaged, It is still useable but the LCD display does not work, There is some melting on the stove and 2 plastic plug covers were also melted.
- There is no basis for the tenant to claim that the landlord is responsible because it was the landlord’s tradesman she was conversing with when the accident happened. It was the tenant's responsibility.
- The landlord is entitled to be compensated for loss caused by the accident.
- A claim is made for replacement of the stove with a cooktop and for the cost of interior repainting. The stove has not been replaced, nor has any interior painting work been done, although a quote has been presented.
- The landlords’ evidence is that a consent has been applied for to demolish the premises. In the absence of evidence of any actual loss to the landlord in those circumstances, I find no basis for compensation proved.
- The tenant says that they were problems with mice and slugs at the premises. The evidence provided does not persuade me that there was an infestation of slugs that the landlord could be held responsible for.
- Clearly there a lot of mice. I have been provided with photographs of mice caught at the premises. The tenant has provided evidence of mousetrap purchases and the landlord has provided evidence of refunding the tenant the cost of mousetrap purchases on 17 and 21 May, 21 June, 7 and 28 July 2020. The landlord has also provided evidence of having paid for a possible entry points for mice being blocked off.
- Generally, the management of a household to minimise its attractiveness to vermin is the responsibility of the tenant as occupier, rather than of the landlord as owner of the building, unless there is a cause for any infestation that can be linked to the landlord’s responsibilities. In this case there is no evidence of such a link. Photographs have been provided showing a large quantity of material stored inside the premises (properly packed into cartons) by the tenant and for a short time at least she had ducks and put their food immediately outside premises. They may have been contributing factors.
- I do not find the tenants claim compensation proved.
- The evidence shows that some window catches were not in an adequate state of repair or utility at the start of tenancy. They were fixed in July 2021. They ought to have been provided in reasonable working condition and repaired much earlier than they were. The tenant is entitled to a compensation for that failure by the landlord which I fix at week’s rent. I do not find that the breach is sufficient to warrant an award of exemplary damages.
- I have been given directly conflicting evidence about whether a smoke alarm was installed in the premises.
- The landlord has provided a photograph showing a smoke alarm installed on the wall above the bedroom door. The priority manager says that photograph was taken from the listing of the premises before the start of the tenancy.
- The tenant says no alarm was installed She has provided photographic and video evidence showing no smoke alarms anywhere in the premises. I also heard evidence by phone from an acquaintance of the tenant, that he had visited the premises on a number of occasions and confirmed that there was no smoke alarm installed on any ceilings. When it was put to the witness that the smoke alarm was may have been installed on the wall above the bedroom door rather than on a ceiling, he was less certain.
- The only basis on which the photographic and other evidence can be reconciled is if the landlord is mistaken about when her photograph was taken or if, as alleged by the landlord, the tenant removed the smoke alarm then lied about it. The landlord alleges she did so in order to bring a claim against the landlord. The landlord has provided evidence of a smoke alarm having been installed since and the cost is claimed from the tenant.
- The weight of the evidence persuades me that no alarm was installed. The only evidence I have to the contrary is a photograph showing an alarm in place, the date of which is not verified. Although the landlord gives reasons, there are no photographs of the alarm in the photographs from inspections during the tenancy. On the other hand I have the direct evidence from the tenant that there was no alarm, corroborated by her witness and the photographic and video evidence showing no alarm and no installation bracket, in that location.
- I also specifically put to [The contractor], who was at the premises when the stove accident happened whether a smoke alarm had gone off in the premises. He was sure that none had. The extent of the smoke damage shown in the photographs suggests to me that had there been a working smoke alarm in the premises at that date, it would have been triggered.
- I therefore find that the landlord has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- Here I have no basis for finding that failure to ensure a working smoke alarm was installed was other than through oversight or miscommunication on the landlord’s part. There was no actual loss caused to the tenant, I have no way of assessing whether the outcome of the accident with the stove would have been different had there been a working smoke alarm in place. As it is, the tenant is not ordered to pay compensation as a result of that event. There is also no evidence of the tenant having brought to the landlord’s attention that no smoke alarm was installed.
- Failure to provide a working smoke alarm is however a fundamental safety obligation, breach of which requires recognition though a modest award of exemplary damages.
- As the tenant has succeeded with claims I reimburse the filing fee.