What was Tenancy Tribunal case 4322243 about?

The tribunal order states: An application for suppression has been made, and the Tribunal orders

How much money was awarded in case 4322243?

Compensation: Inadequate Heating HHS: $250.00 awarded to tenant; Compensation: mould and breach of qu…: $740.00 awarded to tenant; Property Damage: $1,200.00 awarded to tenant; Property Damage: $400.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4322243?

The primary dispute was Exemplary damages. Related themes: Mould & damp, Healthy homes.

Where can I read the official tribunal order for case 4322243?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8523756-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4322243 about?

The tribunal order states: An application for suppression has been made, and the Tribunal orders

How much money was awarded in case 4322243?

Compensation: Inadequate Heating HHS: $250.00 awarded to tenant; Compensation: mould and breach of qu…: $740.00 awarded to tenant; Property Damage: $1,200.00 awarded to tenant; Property Damage: $400.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4322243?

The primary dispute was Exemplary damages. Related themes: Mould & damp, Healthy homes.

Where can I read the official tribunal order for case 4322243?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8523756-Tribunal_Order_Redacted.pdf.

74A Dinsdale Road, Dinsdale, Hamilton 3204 Tenancy Tribunal Case 4322243 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4322243 — net $3,210.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: form and content of tenancy agreement s13 and s13A	$1,200.00	form and content of tenancy agreement s13 and s13A
Exemplary damages: terms inconsistent with the Act, s137	$600.00	terms inconsistent with the Act, s137
Exemplary damages: not providing HHS documents, s45(1AC	$400.00	not providing HHS documents, s45(1AC
Compensation: inadequate heating HHS	$250.00	inadequate heating HHS
Compensation: mould and breach of quiet enjoyment	$740.00	mould and breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,210.44
Total payable by Landlord to Tenant	$3,210.44

Claims and awards in Tenancy Tribunal application 4322243 — net $3,210.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: form and content of tenancy agreement s13 and s13A	$1,200.00	form and content of tenancy agreement s13 and s13A
Exemplary damages: terms inconsistent with the Act, s137	$600.00	terms inconsistent with the Act, s137
Exemplary damages: not providing HHS documents, s45(1AC	$400.00	not providing HHS documents, s45(1AC
Compensation: inadequate heating HHS	$250.00	inadequate heating HHS
Compensation: mould and breach of quiet enjoyment	$740.00	mould and breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,210.44
Total payable by Landlord to Tenant	$3,210.44

Order

An application for suppression has been made, and the Tribunal orders suppression of the Tenant names and identifying details.
Shelley Meecham As Trustee For The Sapphire Trust must pay [The tenant/s] $3,210.44 immediately, calculated as shown in the table below:
The parties agreed during the Tenancy Tribunal hearing held on 29 August 2022, that the tenancy would terminate on Monday 26 September 2022.
It is recorded that the landlord agrees to compensate the tenants by providing a $100.00 reduction in rent in recognition of minor cleaning issues at the start of the tenancy.

Reasons

There were four hearings in this matter, the first on 28 April 2022 and the last hearing on 29 August 2022. Both tenants and the landlord trustee attended all hearings (some attendances were by telephone) and the landlord’s representative, Ms Mills, attended the third and final hearings on 9 and 29 August 2022.
I issued an order on 29 April 2022, after the first hearing, recording work orders by agreement to: install the heat-pump, replace cracked glass in the front door, supply a ranchslider key, cover cracked tiles, and flatten protruding nails.
I issued a second order on 16 June 2022, after the second hearing. I made declaration orders 1 that the landlord has breached sections 13 and 13A of the Residential Tenancies Act 1986 (RTA) by:- a. Failing to provide a signed copy of the tenancy agreement to the tenants before the tenancy commenced (required by s13(2) RTA), and b. Failing to ensure that the written tenancy agreement includes the minimum requirements (set out in s13A RTA), and c. Failing to include a signed and complete insulation statement (s13A(1A-1C RTA), healthy homes standards (“HHS”) statement of intent and HHS statement of compliance (s13A(1CA) RTA).
I record here that the landlord did provide details of the insurance for the premises, as required by s13A(2) RTA.
My order of 16 June 2022 also:- a. Declared certain of the landlord’s tenancy terms to be unenforceable and of no effect because they were inconsistent with the Residential Tenancies Act 1986, and b. Required the landlord to provide a signed and compliant tenancy agreement to the tenants by 6:00pm on 26 June 2022. Background
[Tenant 1] viewed the one-bedroom, stand-alone house with Ms Meecham on 8 August 2021 and the next day the parties agreed to enter into the tenancy as from 21 August 2021. 1 Orders 8, 9 and 10, TT4322243 dated 16 June 2022.
However, the tenants (who were moving from Auckland) were prevented from moving in by a nationwide level-4, Covid-19 lockdown. 2 The landlord held the premises for them, rent-free, and the tenants eventually moved in on 29 September 2021.
The landlord was involved in a serious accident in early September 2021. She engaged the assistance of friends and family to help her with the tenancy commencement and was in contact with the tenants by email and mobile phone.
The first in-person meeting and inspection between both tenants and the landlord took place on 28 November 2021 which is also when the tenants signed the bond form.
The tenants raised some maintenance concerns about the house early on. They were also unhappy about the wording of the tenancy agreement documents emailed to them by the landlord on 15 August 2021 but not signed by either party. They made this application to the Tribunal on 30 November 2021. The tenants’ applications
The tenants have applied for work orders to address maintenance concerns and to amend or clarify terms of the tenancy contract. The orders dated 29 April 2022 and 16 June 2022 addressed these applications.
The tenants also seek compensation and/or exemplary damages for alleged breaches of the Residential Tenancies Act 1986 (“RTA”) by the landlord, as listed below:- a. The required form and content of the tenancy agreement (sections 13 and 13A), b. Whether the landlord’s proposed terms of tenancy and cleaning agreement breach section 137 RTA (which prohibits any person from contracting to contravene, defeat, evade or prevent the operation of any of the provisions of the RTA), c. Failing to provide healthy homes standards information when requested, and/or providing misleading information (s45), d. Failing to comply with the healthy homes standards (s45), e. Maintenance and mould issues (section 45), f. Lack of cleanliness at the start of the tenancy (section 45), g. Failing to provide a key to the ranchslider (section 46), h. Failure to give receipts for rent (section 29), 2 Which commenced on 17 August 2021. i. Failure to lodge the bond within 23 working days of it being received (s19), j. Breaching the tenants’ privacy (quiet enjoyment) (s38), k. Unlawfully entering the premises (s48), and l. An application to reduce the rent on the basis that it exceeds market rent (s25).
Additional applications were made by the tenants on 1 July 2022 related to events that took place after the first hearing. I agreed to address these and the landlord has presented evidence in response. m. Landlord acting to terminate the tenancy without grounds (s60AA) n. Breach of work order (s108(2A)) o. Unlawful discrimination (s12) p. Failing to consent to minor change (s42B(3)) q. Work order to remedy gap in ranchslider (HHS, s45(1)(bb)).
It is the task of the applicant party to prove their claim. I do not need to be certain, but I do need to consider that what is alleged is “more probable than not”.
Compensation may be awarded to a non-breaching party to recover expenditure or loss arising from the breach.
Exemplary damages may only be awarded when a party has intentionally committed an unlawful act (as listed in Schedule 1A RTA) within the 12 months before the application, and where the Tribunal considers this would be just after having regard to intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA.
Both parties have provided a large amount of evidence. I have not referred to all of that in this decision, but I have considered it all. Ending of the tenancy
The parties agreed during the Tenancy Tribunal hearing on 29 August 2022, that the tenancy would terminate on Monday 26 September 2022. New tenancy agreement does not comply with RTA
My work order dated 16 June 2022 required the landlord to provide a new written tenancy agreement (“the new agreement”) to the tenants by 26 June 2022. The new agreement was signed by the landlord and dated 24 June 2022.
However, the tenants were concerned that parts of the new agreement still did not comply with the RTA in all respects. Their concerns were discussed in the final hearing and I made oral decisions that day, which I record below:- a. The landlord should strike out one of the options in clause 2, page 6 of the new agreement so as to clearly state whether the tenancy is for a fixed term or is periodic. In this case, the fact that there is no date entered into the fixed term tenancy clause means that the tenancy is periodic. b. The landlord is entitled to prohibit subletting by striking out the bold words in clause 3, page 6 of the new agreement (see s44 RTA). c. The insurance and insulation statements should be accurate however, in this case, do not mislead the tenants, so any omission or error is not a misrepresentation. d. If an ingoing condition report is not accurate, the tenants have the opportunity to advise the landlord of any corrections (this is the usual process between a landlord and tenant). e. The landlord has not fully amended the additional tenancy terms as required by the order dated 16 June 2022. Clause 14 should be deleted as it has been replaced by clause 23. Clause 16 is too restrictive as it is and should say: “Curtains must be usually opened during the daytime to assist with ventilation”, or something similar. Compensation and Exemplary Damages Claims a. The required form and content of the tenancy agreement (s13 and s13A RTA).
The tenants claim that the landlord did not comply with all legal requirements relating to tenancy agreements.
The landlord emailed the tenants two documents before the tenancy began and says that these constitute the tenancy agreement. The two documents are:- a. A list of ‘Tenancy Terms’ (1-26 terms), and b. A separate ‘cleaning agreement’ (dated 16-08-2021).
I decided this claim in my order dated 16 June 2022 (see paragraphs 3 and 4, above).
The tenants seek exemplary damages and or compensation for the breaches of s13 and s13A RTA. I consider this now.
It is difficult to quantify compensation (a measure of loss) for these breaches. I consider that exemplary damages are more relevant.
The landlord has committed five breaches in total under this head and each are unlawful acts for which exemplary damages of a maximum of $750.00 may be awarded; see sections 13(4), 13A(1AAA), 13A(1F)(a) and Schedule 1A RTA.
The five breaches are:- a. Failing to provide a signed copy of the tenancy agreement to the tenants before the tenancy commenced (required by s13(2) RTA), b. Failing to ensure that the written tenancy agreement includes the minimum requirements (s13A RTA) in that the ‘Tenancy Terms’ document and ‘cleaning agreement’ did not include the parties’ names and contact/service details, there was no tenancy commencement date, and no rent or bond details, c. Failing to provide a signed and complete insulation statement (s13A(1A-1C RTA), d. Failing to provide a signed healthy homes standards (“HHS”) statement of intent (s13A(1CA)(a) RTA), e. Failing to provide a signed HHS statement of compliance containing the information set out in regulations 34 to 39 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (s13A(1CA)(b) RTA).
Completion of signed compliance statements setting out insulation information has been required since 1 July 2016 (s13A(1A) RTA) and insurance details since 27 August 2019 (s13A(2) RTA). A statement regarding the landlord’s intent to comply with HHS has been required since 1 July 2019 and a separate statement detailing the extent of compliance, since 1 December 2020 (s13A(1CA) RTA).
I note that the landlord did provide insurance information as part of the ‘tenancy terms’ document. 3 I am satisfied that this complies with s13A(2) RTA.
I do not consider that it is just to award exemplary damages for the first breach: the landlord’s failure to provide a signed tenancy agreement before the tenancy began. The landlord said that it was her understanding that original signatures must be attached to tenancy documents and that she could not see the tenants in person until two months after the tenancy began, firstly because of the Covid-19 lockdown and, later, because she was in hospital. In fact, an original signature on a paper document is not required, and it is common practice for legal documents to be signed in separate places and for scanned copies to be emailed. However, I accept that this was the landlord’s genuine belief and do not consider it appropriate to award exemplary damages for a genuine misunderstanding. 3 Clause 24 of the ‘Tenancy Terms’.
However, the breaches listed from b to e are different. After careful consideration, I do consider that the failure to provide a tenancy agreement containing all of the information specified in s13A RTA before the tenancy began should be seen as “intentional” in the sense meant by section 109 RTA.
In the words of Judge Harrop in TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 (at paragraph 37): Like all citizens, corporate or otherwise, [the landlord is] deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.
The landlord said that she (as trustee) owns five tenanted properties. She should know that basic tenancy terms and the compliance statements (Healthy Homes, insulation, and insurance) are mandatory and have been for some time.
Also, although there were difficult circumstances at the beginning of the tenancy (a Covid-19 lockdown and the landlord’s accident), it was possible for a full and compliant tenancy agreement to have been emailed to the tenants before the tenancy began. It was also possible for the landlord to have engaged an agent or a friend to help her with tenancy matters after her accident.
I now consider the other factors in section 109 RTA:- a. I find it probable that the landlord’s intent was not to mislead the tenants. She seems to have been unaware of the legal requirements rather than trying to avoid her obligations. b. The tenants’ interests are that a landlord fully complies with the tenancy agreement requirements so that all terms of the contract are clear, and the compliance status of the property is known. c. The effect of the breaches was that the tenants were not given the important insulation and healthy homes compliance information that they should have been, were left to rely on verbal assurances from the landlord (some of which turned out to be incorrect) and were unsettled at the lack of complete documentation. d. The public interest is that landlords who do not meet these important obligations are noted. These are not minor matters. Tenants should not have to piece together the terms of a tenancy from a combination of documents and emails or texts. A binding contract should be clear and completed accurately and fully. Parliament has legislated to require minimum standards of insulation and the HHS and these are only effective if the tenancy agreement is complete and accurate.
There are four breaches for which I consider it just to award exemplary damages. I award $300.00 for each breach (the maximum is $750.00) which is a total of $1,200.00. This takes into account the cumulative amount awarded and that there are no prior orders against this landlord. b. Whether the landlord’s proposed terms of tenancy and cleaning agreement breached section 137 RTA (which prohibits any person from contracting to contravene or evade the provisions of the RTA).
The tenants say that the landlord required them to agree to her ‘Tenancy Terms’ and ’cleaning agreement’ and that, by doing so, she has breached s137 RTA, which says:- 1) No person may enter into any transaction, contract or arrangement, or do anything: (a) that contravenes, or will contravene, any provision of the Residential Tenancies Act 1986; or (b) for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of that Act.’ 2) Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00.
The tenants did not agree to the landlord’s terms. Instead, they questioned them, and made this application to the Tribunal.
I discussed this fully and made declarations in the order of 16 June 2022 specifying that certain clauses in the ‘tenancy terms’ and the ‘cleaning agreement’ were of no effect because they were inconsistent with the RTA. 4 For example, the ‘cleaning agreement’ required the tenants to keep the premises “immaculately clean” which is above the legally required standard of “reasonably clean” in s40(1)(e) RTA.
Section 11 RTA, in general, prohibits terms that are inconsistent with the Act.
I am satisfied that by proposing terms that were more onerous than the obligations of a tenant contained in the RTA, that the landlord has breached s137 RTA.
This is an unlawful act and, again, should be seen as intentional in the sense that even if the landlord did not know that it is an unlawful act to include terms that are more onerous than the obligations in the RTA, that she did intend to hold the tenants to those terms.
Taking into account the other factors in s109 RTA, I find that the landlord’s intent or reasons for the more onerous terms were understandable as they were mostly aimed at cleaning and improving ventilation, however they went too far. The effect on the tenants was that they were unsettled and upset at the requirement 4 Orders 12 and 13, TT4322243 dated 16 June 2022. to agree to these obligations, and they were required to make this application. The landlord did not accept their objections initially and told them that the clauses were non-negotiable. There is a public interest as it is important that landlords know that they must not place obligations on tenants that exceed their legal obligations.
I award exemplary damages of $600.00 which is a third of the maximum and recognises that there is no evidence that the landlord has been made aware of this before. c. Healthy Homes Standards information not provided and/or misleading (45(1AD)(a) RTA)
The tenants claim that the landlord did not provide Healthy Homes Standards (HHS) information when they asked for this, and that the information that she did provide was misleading. In particular, they say that the landlord advertised that the premises complied with the HHS and repeatedly assured them of this when they asked. They found out later that the heating in the living room did not comply and that the rangehood ducting did not comply because it allowed stale air to return inside.
A landlord must provide HHS information to a tenant within 21 days after the date of receiving a request for it; s45(1AC) RTA. A landlord who, without reasonable excuse, fails to provide the information, commits an unlawful act for which exemplary damages of a maximum of $750.00 may be awarded; s45(1AD)(a) RTA.
From 1 July 2021, private landlords must ensure their rental properties comply with the Healthy Homes Standards (HHS) within 90 days of any new, or renewed, tenancy. 5
The HHS are contained in the Residential Tenancies (Healthy Homes Standards) Regulations 2019. The standards require that premises have compliant ceiling and underfloor insulation 6 , the main living room contains a qualifying heater 7 capable of maintaining a temperature in that room of 18° celcius 8 , bathrooms and 5 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019. 6 Regulations 14 to 18, Residential Tenancies (Healthy Homes Standards) Regulations 2019 (RT(HHS) Regs). Ceiling insulation of R2.9 (zone 1 or 2), R3.3 (zone 3), installed in accordance with NZS 4246:2016 and at least 120mm thick. Underfloor insulation of R1.3. There are various exemptions to the requirements. 7 See regulation 9 (RT(HHS) Regs). A fixed heater of at least 1.5 kilowatts (kW), with thermostat (if an electric heater or heat pump). Unacceptable heaters are an open fire, an unflued combustion heater, or an electric heater if the required heating capacity is greater than 2.4 kW. There are exemptions for certain certified passive buildings (because they are designed to remain warm without heating) and if it is not reasonably practicable to install complying heating; regs 11 and 12. kitchens have extractor fans and other rooms have windows or doors opening to the outside 9 , premises are free of unreasonable draughts 10 , have an efficient drainage system for ground and roof water 11 and an underfloor moisture barrier (if there is an enclosed subfloor). 12
After considering the evidence, I find that:- a. The landlord did not provide complete HHS information within 21 days of the tenants requesting it. The tenants’ requested this information on 27 November 2021 and the landlord provided an insulation report. However, she did not provide information about any of the other HH standards (for example, heating or ventilation). A further request was made for the specifications of the bathroom extractor fan to which the landlord replied saying that it complied with the regulations and giving the name of the product but did not provide any verifying documents (such as a receipt for the purchase). b. Section 123A(1) RTA requires landlords to keep documents that relate to compliance with the HHS for 12 months after a tenancy has ended. A landlord does not have to create documents simply for the purpose of complying but must keep records such as photographs, invoices or reports from contractors who do work, records of calculations of a living room’s required heating capacity, product manuals for fans, heaters or other items that are installed. 13 c. The landlord said that she had used the Tenancy Services “online assessment tool” as the basis for installing a 2kW heater in June 2020 but that she did not keep a copy of the assessment report from the online tool. The landlord said that the bathroom extractor fan and kitchen rangehood were installed at the same time as the heater, but she did not supply the tenants with records of this installation (such as a contractor or hardware invoice) or any other information to verify the size or capacity of the ventilation. 8 Calculated in accordance with Schedule 2 (RT(HHS) Regs) or the Tenancy Services online ‘Heating Assessment Tool’ which requires input of the size measurements of the living area’s walls and windows. 9 Regulations 21-24 (RT(HHS) Regs). Kitchen extractor fan ducting must be a minimum of 150mm or an exhaust capacity of 50 litres per second, bathroom of 120mm or 25 litres per second. The size of the openable windows or doors must equate to at least 5% of the floor area of that space. There are exemptions if it is not reasonably practicable to install ventilation and that was legal at the time of construction. 10 Regulations 25 and 26 (RT(HHS) Regs). 11 Regulation 27 (RT(HHS) Regs). 12 Regulation 28 (RT(HHS) Regs). 13 Regulation 40 (RT(HHS) Regs). d. I find that the landlord has breached s45(1AC) RTA and did not have a reasonable excuse for failing to keep and provide the relevant documents. This is an unlawful act.
As stated earlier in this decision, it is not an excuse to not know the law. The landlord deliberately chose not to keep and provide documents to verify her claims that the premises complied with the HHS.
Considering the factors in s109 RTA, I am satisfied that although her intent was not to mislead, she was not open with the information and the effect on the tenants was that they were, in fact, misled. They entered into the tenancy having been told in the advertisement and at the viewing that the premises fully complied with the HHS. It turned out that the heating was inadequate. The interests of tenants are that they are able to rely on what they are told and are given verification documents if they ask for them. A landlord cannot simply say that a property complies. There is a public interest in landlord’s understanding that they must be able to provide the documents to verify HHS compliance. I award exemplary damages of $400.00. d. Failing to comply with Healthy Homes Standards – s45(1A) RTA
The landlord accepted that the heater in the living room at the start of the tenancy did not comply with the HHS heating standard. She says that she must have made an error when she used the Tenancy Services “online assessment tool” as the basis for installing a 2kW heater in June 2020. The tenants’ attached a heating report from the same online tool to their Tribunal application which assessed the required heating as 4.9kW. The landlord then obtained reports from three different compliance companies all of which measured the living area, used the online tool and came up with different results. 14 A 5-kilowatt heat-pump was installed in the main living area on 3 May 2022.
I accept the Healthy Homes compliance report dated 19 April 2022 and certificate dated 4 May 2022 as evidence that the premises complied with the HHS from the certificate date. The report states that the premises did comply with the HHS in regard to all other standards except that the kitchen rangehood initially allowed a small amount of expelled air to be blown back inside through an external “open grill” vent (which was then replaced with a “flap grill”).
The landlord breached s45(1)(bb) RTA by not complying with the Healthy Homes Standards by the due date of 28 December 2021. 15 14 “Nathan” report result 3.9kW; “Total Rental Compliance” report result 5kW; “Liam” report results
7kW and 6.8kW. My assessment of the difference between the reports is that the assessors have used different measurements for the living room and the windows and doors. It highlights the importance of accurate data.
The tenants seek compensation and exemplary damages as they are concerned that the landlord intentionally misled them as to the compliance of the premises with all HHS. I have addressed this concern in the section above.
My decision is that the landlord must compensate the tenants for not having a heater of the correct capacity. I award compensation of $250.00 and note that the months between 29 September 2021 and 4 May 2022 are the warmer months of the year when a heater would probably have been needed infrequently. 16 I do not award compensation in regard to the kitchen rangehood issue as consider this to be minor.
I am satisfied that the landlord made a genuine error in underestimating the heating required so do not award exemplary damages for this breach. e. Maintenance and mould issues – s45 RTA
Section 45(1)(b) of the Act says that a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises. These responsibilities remain even if the tenant has notice of the state of the premises at the start of the tenancy; see s45(3) RTA.
A tenant has a statutory duty to advise of any defects (s40(1)(d) RTA) and a landlord should be given a reasonable opportunity to remedy a defect before being held to be in breach of its duty.
The tenants raised concerns about mould in the house from their first email and photos to the landlord soon after moving in. In late November 2021, they alerted the landlord to water damage in the hot-water cupboard and a mould smell from the kitchen carpet.
The tenants also raised other maintenance issues including missing rubber seals around some windows, a cracked tile edge and protruding nails at the doorstep, and lime build-up on the shower head. I find that the window seals were attended to by the landlord in a timely way and that the other issues were relatively minor. These are therefore not a breach of the maintenance obligations.
The parties negotiated during the hearings to remove some of the outdoor furniture. I am satisfied that the tenants’ concerns about this were a matter of personal preference and not a maintenance issue.
After considering all of the evidence about the mould, I find it probable that the premises were affected by this from when the tenants moved in until after 15 This is the date 90 days after the tenancy start date of 29 September 2021. 16 Tenancy start date was 29 September 2021 – the weather may have been cool at times in October and April. remediation work was done in the kitchen and hot-water cupboard. The work revealed a large amount of mould under the kitchen carpet. The landlord accepts that part of the cause was a previous leak from the bathroom area. It is probable that the age and character of the premises (single-glazed aluminium windows which conduct heat and may cause condensation and fibre-cement cladding) also played a part.
The landlord reimbursed the tenants for the cost of exit-mould and took action to have the kitchen flooring and mouldy gib-board replaced (around the hot-water cylinder). However, I do find that the mould problem was a breach of the maintenance obligations. The landlord must have known that mould and condensation were an issue both from the earlier leak and the nature of the premises. The tenants were negatively affected. The premises were not pleasant to live in, (for example, mould grew on packets of food in the pantry) and there was disruption and detriment during the repainting of the kitchen drawer fronts (a strong lacquer paint was used), replacing the kitchen flooring (which unexpectedly required grinding and sealing of the concrete floor), and removal and reinstatement of the gib-board around the hot-water cylinder. I have awarded compensation for this detriment as part of the issue of breach of quiet enjoyment (see section “j”, below) as these are related.
I do not award exemplary damages as I do not consider that the landlord intentionally failed in her maintenance obligations. Once the extent of the mould problem was known, she took action. Work orders for all maintenance issues – s78
I made orders on 29 April 2022 and 16 June 2022 which dealt with outstanding maintenance issues and I am satisfied that nothing was left unresolved. f.Cleanliness at the start of the tenancy – s45 RTA
The landlord is required to provide tenancy premises in “a reasonable state of cleanliness”; s45(1)(a) RTA.
I have read the evidence and viewed the photos provided by both parties relating to the cleanliness at the start of the tenancy. The tenant’s ingoing photos are close-ups of mould or dirt on limited and specific areas including a kitchen shelf, corner of a window, under the bathroom vanity, the exterior edges of some windows, inside the toilet cistern and on the back of two curtains.
I find that the issues raised at the start of the tenancy were minor and that, overall, the premises were provided “in a reasonable state of cleanliness”. The tenants agreed to address the issues themselves (spot cleaning, flea bomb, using their own curtains) and the landlord offered to compensate them for costs (flea bomb, exit mould) and a $100.00 reduction in rent. This was appropriate on both sides given the lockdown circumstances and I note that the landlord had engaged a cleaner before the tenants had moved in. I have not awarded this amount in the money order because I was not given information as to whether or not the landlord has already reduced the rent by this amount. I make a declaration to this effect instead. g. Providing keys and locks – s46 RTA
The tenants say that it is a breach of s46 RTA that the landlord did not provide a key for the ranchslider entrance to the premises. The evidence shows that initially the landlord said that a key was not available as there had never been one during her ownership of the property. However, she did later find a key, which she gave to the tenants in early May 2022.
Section 46 RTA says: The landlord shall provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure.
The tenants say that the ranchslider was the “first” entry to the house so needed a key and that they were not told that there was not one when they viewed the house. The landlord says that there was a key for the “front door”, and it was enough that the ranchslider could be locked and unlocked from the inside.
I agree with the landlord that it was enough that there was a key to another door to this small house. The tenants could securely and easily access the property and could lock the ranchslider from the inside. I find no breach of s46 RTA and do not award compensation.
However, I agree with the tenants that they should have been told this from the beginning. It is reasonable to expect a door to have a key unless you are told that it does not. It turns out that there was a key. h. Receipts for rent – s29 RTA
The tenants say that the landlord has failed to provide receipts for rent payments. The landlord says these are not required because payments of rent were made to and from the parties’ bank accounts so can be evidenced by bank statements.
This claim is dismissed. I am satisfied that rent was paid out of a bank account in the name of the tenant by automatic payment through the bank or into an account nominated by the landlord and used for tenancy purposes. The landlord has complied with s29(4) RTA. i.Failure to lodge bond within 23 working days – s19 RTA
The bond of $1,480.00 was paid by the tenants on 30 September 2021. It was lodged at the Bond Centre on 5 December 2021.
This is a breach of s19 RTA which requires any payment of bond to be lodged within 23 working days. However, this is only an unlawful act if the failure is intentional; s109 RTA.
I accept the landlord’s explanation for the delay in lodgement as being due to the restrictions on contact during covid-19 lockdowns and her understanding that the tenants must sign the bond lodgement form. The form was signed, and the bond lodged promptly after the first meeting on 28 November 2021. I find that it would not be just to award exemplary damages in these circumstances. The Tribunal notes that a bond can be lodged with an electronic signature or even without a signature so the landlord should not delay lodgement in future. j.Breaching the tenants’ privacy (quiet enjoyment) – s38 RTA k. Unlawfully entering the premises - s48 RTA
I deal with these issues together because they are related.
A tenant is entitled to quiet enjoyment of the property without interruption by the landlord and a landlord is not to cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises; section 38 RTA. If there is harassment, this is an unlawful act; s38(3) RTA.
However, the right to quiet enjoyment is subject to the landlord’s lawful rights and obligations, as long as these are exercised reasonably.
Section 48 of the Residential Tenancies Act 1986 sets out the landlord’s right to enter the premises. It provides that the landlord must not enter the premises except with the consent of the tenant given at or immediately before the time of entry, or with the appropriate prior written notice. For the purposes of section 48, “premises” does not include land or facilities. This means that a landlord does not strictly have to give notice before entering the land on which the tenancy house is situated.
The tenants detailed a list of specific concerns. They say that the landlord on two or three occasions came to the house unannounced, arranged for a contractor (already at the house for another reason) to check the smoke alarm (located in their bedroom) without giving the required notice for this purpose, and that they feel the landlord may have requested entry more frequently than she was entitled to. They also say that her insistence that the curtains always be kept open in the daytime and that the lawns be mowed weekly went too far and breached their right to live as they choose.
I have read the many emails and texts between the parties and listened to the audio recording from the first inspection. My decisions are:- a. Mostly, I consider that the landlord’s interactions with the tenants were reasonable and appropriate given that the first meeting between the parties had been delayed until late November due to Covid-19 and the landlord’s car accident. A landlord is permitted to enter the outside of a property and knock on a tenant’s door just as any other member of the public is able to do so. b. There is no evidence that the landlord conducted inspections more frequently than permitted under the law. I am satisfied that the visit on 12 December 2021 was a re-inspection of the lawns. c. I agree that the landlord is required to specify in her written notice that the smoke alarm was to be checked. A notice of entry given for one purpose cannot be used for another purpose even if that is convenient (it did make sense because the contractor was already at the house); see s48(2)(ca) RTA. However, the evidence indicates that [Tenant 2] gave verbal consent to the contractor to check the smoke alarm, so there was no unlawful entry; see s48(1)(a) RTA. d. A tenant has an obligation to keep lawns “reasonably tidy”; s40(1)(c) RTA. There were no photos to allow me to assess whether the landlord was requiring more than this. On the evidence, Ms Meecham’s reminders that the lawns needed to be mowed are reasonable. e. I agree with the tenants that the landlord’s repeated insistence about ventilation and keeping all curtains open every day, the maintenance work in the kitchen and hot-water cupboard, and the multiple visits by three HHS heating assessment companies and the installation of the heatpump, resulted in unreasonable disruption and a breach of the tenants’ quiet enjoyment. It is true that all houses need maintenance from time to time. However, the work required here was due to a mould problem caused by a previous leak and the age and character of the house (see above, at section “e”). When mould is caused by an already existing problem, then it is primarily the landlord’s responsibility to remedy it. I find that Ms Meecham put too much emphasis on the things she wanted the tenants to do (keeping windows and curtains open and cleaning mould). The ‘tenancy terms’ and ‘cleaning agreement’ focussed heavily on this, it was a focus of her visits to the property, and she issued the tenants with a 14-day notice of breach on 20 June 2022. If a house can’t be lived in and left closed when tenants are at work, and curtains kept closed some days for privacy or extra sleep, then a landlord needs to seriously investigate the causes of that. It turned out that there was serious mould under the kitchen carpet and in the hot-water cupboard wall.
I award compensation for the combined effect of the mould and maintenance issues on the amenity (or pleasantness) of living at the property and the breach of quiet enjoyment. I calculate this as follows: Mould – for 4 and a half months 17 $370.00 Disruption from maintenance and heatpump work $370.00
There was no unlawful entry, and the breach of quiet enjoyment was not harassment, so exemplary damages do not apply. l.An application to reduce the rent on the basis that it exceeds market rent - s25 RTA
The tenants have applied to the Tribunal to review the rent payable for the tenancy premises and to reduce this to market rent. Both parties provided a lot of relevant evidence.
The criteria I must consider is specified in section 25 RTA. The relevant parts of s25 are: (1) On an application made to it at any time by the tenant, the Tribunal may ... on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount ... that is in line with the market rent. ... (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive, and a willing tenant might reasonably be expected to pay for the tenancy, taking into consideration the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters the Tribunal considers relevant. (4) An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order. [Adjudicator’s underlining]
The weekly rent during this tenancy was $370.00 per week. 17 29 September 2021 (start of tenancy) to 11 February 2022 (the date the hot-water cupboard mould was removed and treated).
This is a simple, one-bedroom, one-bathroom, stand-alone premises situated on a private, rear section of lawn and mature shrubs about 480 square metres in size. It is located in the Dinsdale suburb of Hamilton/Kirikiriroa.
I must take into account the general level of rents for comparable tenancies of comparable premises in the locality or in similar localities; s25(3) RTA.
Both parties provided data from the “market rent tool” on the Tenancy Services 18 (“TS”) website. The tool gives a market rent guide for tenancies of privately- owned 19 properties within a selected locality. The tool gives lower, median, and upper quartile 20 rents within a six-month tenancy start-date range and across various dwelling types. There is no distinction between furnished and unfurnished properties and data where the bond lodgement information was incomplete are excluded.
Both parties also provided information from the TradeMe Property website 21 . The TS website explains that TradeMe data is the asking price of rentals, so does not show the rent actually agreed to. 22 TradeMe publishes articles showing the percentage change in asking rents in what it calls a “Rental Price Index”.
The tenants submit that the market rent was between $320.00 to $330.00 in August 2021 (the original start date of the tenancy). They provided detailed comparative information. Their TS evidence is that median rents for tenancies starting between 1 May 2021 to 31 October 2021, of 1-bedroom houses across eight suburbs (excluding Dinsdale), range from a low of $240.00 per week (Silverdale) to a high of $350.00 per week (Frankton and Hamilton Lake).
The tenants also gave four detailed examples from TradeMe concluding that the selected properties were of a higher quality and with better features (for example, one is a modern, partly furnished, central city apartment ($360.00), another includes lawns and garden maintenance in the rent ($350.00)) and all have cheaper asking rent (three at $350.00, one at $360.00) as at June 2022, which is ten months after this tenancy was entered into.
The landlord gave evidence specific to this property including bond lodgement forms from the two immediately prior tenancies showing that the weekly rent was $300.00 per week for a tenancy starting in August 2019, and $350.00 per week for the next tenancy starting in July 2020. She also supplied two rental 18 Tenancy Services is a government agency and is part of the Ministry of Business, Innovation and Employment (MBIE). 19 Not government owned. 20 Lower quartile – the weekly rent at 25% of all rents when placed in order of value; median rent – the middle value when all rents placed in order of value; upper quartile – the weekly rent at 75% of all rents when placed in order of value. From TS website/market-rent. 21 https://www.trademe.co.nz/c/property 22 https://www.tenancy.govt.nz/rent-bond-and-bills/market-rent/difference-between-mbie-and-trade-me- rental-figures/ appraisals from two well-known real estate and property management companies:- a. “Appraisal 1” (dated 10 May 2022) assesses the market rent at $340.00 to $380.00 per week in the second half of 2021; b. “Appraisal 2” (dated 13 May 2022) estimates weekly market rent as at that date as $390.00 to $420.00 per week and advises that national and Waikato rents had increased 7% annually so makes an assessment that the rental value in August 2021 was between $360.00 to $390.00 per week.
My comparison: a. I agree that the premises are probably most similar to the TS category of “1- bedroom houses”. However, rents for “1-bedroom flats” in Dinsdale are also relevant. My analysis of the TS data supplied by the tenants shows that a “flat” may rent out for more than a “house”. 23 b. The tenancy premises are approximately 50 years old, made of materials of a lower to mid-range quality (fibre cement board cladding, single-glazed aluminium joinery, entry-level kitchen and bathroom fittings). The property is private, and the location has good access to facilities and to the central city. The TS categories are lower, median and upper quartile. I consider that the lower to mid-range quality taken together with privacy and good location means that a “median” rent is a fair comparison. c. The TS median market rent data for tenancies starting between 1 May 2021 to 31 October 2021 is: Dwelling typeSuburb of HamiltonMedian rent House 1-bdEight other suburbs$240 to $350 Flat 1-bdDinsdale$280 d. The 6-month tenancy start date period makes a difference. The landlord’s TS data for Dinsdale for tenancies starting between 1 September 2021 to 28 23 For example, the median rent for 1-bedroom flats in Melville and Frankton is less than 1-bedroom houses in the same locality, whereas in Hamilton East, Whitiora, Hamilton Lake, and Hillcrest, the flats rent out for more than the houses. The dwelling type categories on the TS website are “self- selected” by whoever happens to complete the bond lodgement form. One person may call something a “house” where another would choose a “flat” or “apartment”. February 2022 is about 5% higher 24 than for the period used in the tenants’ data: SizeActive bonds Lower quartile Median rentUpper quartile Flat 1-bd36$280$295$300 House 2-bd141$450$485$510 Room 1-bd21$153$160$175 e. I consider that this property is in the median quartile of TS rents but note that the tenants’ comparison data was taken from a period that started 5 months before this tenancy did. For this reason, the range of $240.00 to $350.00 per week is probably too low. If 5% is added, the range is $252.00 to $367.50. f. I agree that the TradeMe properties do appear to be of a good quality and comparable to the tenancy premises in that they are stand-alone. g. I do not accept all of the tenants’ “logical reasons” as to what will affect market rents. I do not agree that the attributes of the landlord or geographical proximity to the city centre are likely to affect the rent. I consider that the problems of mould and the discovery that the heating did not meet the HHS standard are addressed by compensation and not as an adjustment to market rent. h. I consider that the two written appraisals from real estate agents are expert evidence however I agree with the tenants that the value of these is limited by the fact that the authors did not go to the tenancy premises but relied on photographs provided by the landlord taken from the rental advertisement.
Overall, I am not satisfied that the rent of $370.00 exceeds the market rent by a “substantial” amount. I do consider that the rent was probably on the high side but “substantial” is a high bar to reach. I decline to reduce the rent. I am satisfied that the most appropriate compensation is what has been awarded for the loss of amenity due to mould issues, the inadequate heating, and the disruption to quiet enjoyment. 24 Median rent for a flat 1-bedroom in Dinsdale increased from $280 to $295 per week Additional applications m. Landlord acting to terminate the tenancy without grounds (s60AA)
The tenants say that the landlord acted to terminate the tenancy without grounds after a property inspection done on 9 June 2022.
I dismiss this claim. The landlord did choose to issue a 14-day notice of breach pursuant to section 56 RTA after this inspection (raising concerns about ventilation and cleaning). However, issuing a notice of breach is not an action to terminate the tenancy as meant by section 60AA RTA. That section applies if a landlord gives a tenant a ‘notice to terminate’ or applies to the Tribunal to terminate a tenancy while knowing that they are not entitled to do so; see the wording of s60AA RTA.
I have said, above, that the landlord’s action in issuing the notice of breach is part of the breach of quiet enjoyment. I do not consider that the notice was justified because the issues of mould and condensation related to the features of the premises and a previous leak and were primarily the landlord’s responsibility to investigate and address. n. Breach of work order (s108(2A))
The tenants say that the landlord breached work orders of the Tribunal by:- a. Not responding to a direction of the Tribunal about the landlord’s availability, and b. Not properly complying with a work order requiring the landlord to provide a tenancy agreement signed and in writing that complies with sections 13 and 13A of the RTA no later than 26 June 2022.
I dismiss these claims:- a. A direction is not a work order. The landlord did confirm availability with the Registrar. b. I am satisfied that the landlord did comply with the intent of the order. I have addressed the tenants’ concerns about the new agreement at the beginning of this decision. o. Unlawful discrimination (s12)
The tenants allege unlawful discrimination on the grounds of ethnicity after a discussion with the landlord about the use of the kitchen rangehood during cooking.
I dismiss this claim. I find no evidence of discrimination in regard to the granting, continuing, extension, variation, termination or renewal of the tenancy; see s12 RTA. p. Failing to consent to minor change (s42B(3))
On 4 October 2021, the tenants made an email request to the landlord for permission to attach a wall clock and photos to the walls in the lounge, saying that they had noticed there were already some existing hooks in the house.
The tenants say that this was a “minor change” (as defined in s42B(2) RTA) and that the landlord has committed an unlawful act by withholding consent to this request; s42B(3) RTA.
The landlord says that she simply overlooked the request in the midst of the many emails and texts between the parties.
The landlord does have an obligation to respond in writing within 21 days of receiving any written request by a tenant for consent to attach a fixture (or to a renovation, alteration, or addition); s42A(3) RTA.
A landlord cannot refuse consent to a “minor change”; s42B(1) RTA. I agree that attaching lightweight items to internal walls is a minor change as defined in s42B(2) RTA because there is a low risk of any material damage and the premises can be easily returned to substantially the same condition; s42B(2)(a),(b) RTA.
My order of 16 June 2022 partly addressed this issue in declaring that a clause in a tenancy agreement that prohibits a tenant from attaching picture hooks or other similar items used for making minor changes is unenforceable.
I accept the landlord’s explanation that she simply overlooked the request and did not intend to withhold consent. Even so, she did breach the requirement to respond in writing. I do not award compensation because there is no evidence that the tenants’ followed up on their email request, or of detriment (they may well have gone ahead and used the existing hooks), and also because the tenancy has now ended. q. Work order to remedy gap in ranchslider (HHS, s45(1)(bb))
The tenants say that there are unreasonable gaps at the base of the ranchslider. Their photographs and measurements show a round hole with a diameter of 9mm and two rectangular holes each 30mm in height with widths of 9mm and 10mm. The ranchslider track running into the rectangular holes is 6mm in height.
Regulation 26 of the HHS 25 say: 26 Gaps and holes that allow draughts (1) The premises must be free from gaps between, and holes in, building elements that— (a) are not intentional parts of the construction of the premises (such as drainage and ventilation openings); and (b) allow draughts into or out of the premises; and (c) are unreasonable. (2) In determining whether a gap or hole is unreasonable for the purposes of subclause (1)(c), the following matters may be taken into account: (a) the size and location of the gap or hole: (b) the extent of the draught that is allowed through the gap or hole: (c) if there is more than 1 gap or hole at the premises, the extent of the total draught that is allowed through those gaps and holes: (d) the likely impact that a draught through the gap or hole will have on heat loss from the premises: (e) any other relevant matters, subject to subclause (3). (3) In determining whether a gap or hole is unreasonable for the purposes of subclause (1)(c), the age and condition of the premises or tenancy building must not be taken into account.
The landlord says that the round hole and the rectangular holes are part of the design of the 1970’s ranchslider and are necessary for it to operate correctly. She suggests that the tenants cover the gaps with tape.
The Healthy Homes compliance report dated 19 April 2022 states that the house has no significant identifiable draughts or gaps; see page 10 of the report.
After considering the evidence, I am not satisfied that it is more probable than not that the gaps are unreasonable. They do appear to be intentional parts of the design of the ranchslider, perhaps to allow for drainage of condensation from the lower sill of the door. Also, it was unclear whether the gaps are to the outside of the house. This claim is dismissed.
However, I do agree with the tenants that the size of the gaps is quite large considering the “rule of thumb” recommended by Tenancy Services 26 that a gap of 3mm or more may be unreasonable. The landlord may like to consider ways they could be reduced yet still allow the door to function correctly. 25 Ibid, at footnote 11. 26 “Healthy homes standards - Draught stopping” guidance document, Tenancy Services, page 5. Summary
The landlord has breached a number of her legal obligations. She needs to ensure that she is aware of these particularly as she owns and manages multiple properties. The tenants raised valid concerns. Suppression and filing fee
A party who has been wholly or substantially successful in proceedings, is entitled to name suppression; s95A(1) RTA. The tenants have been partly successful in this case and I do suppress their names on this occasion, also taking into account that this was their first formal tenancy in New Zealand. I also award them the filing fee. Bond
I make no order about the bond as this was not part of the application or issues. The parties can make a joint application to the Bond Centre using the Bond Refund Form or make a new application to the Tribunal if there is a dispute about the bond.

Tenancy Tribunal case 4322243 — Exemplary damages at 74A Dinsdale Road, Dinsdale, Hamilton 3204

At a glance

Tenancy Tribunal case 4322243 — Exemplary damages at 74A Dinsdale Road, Dinsdale, Hamilton 3204

At a glance

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Order

Reasons

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Residential Tenancies Act sections

Key findings

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Award balance

Claims & awards

Order

Reasons

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Residential Tenancies Act sections

Key findings

Frequently asked questions