What was Tenancy Tribunal case 4325870 about?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4325870?

Compensation: Loss of use - dumbwait…: $125.00 awarded to tenant; Compensation: Loss of use of the poo…: $1,000.00 awarded to tenant; Compensation: Miele dryer reimbursem…: $350.68 awarded to tenant; Compensation: Water issue identifica…: $392.12 awarded to tenant; Smoke Alarms: $3,000.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4325870?

The primary dispute was Healthy homes. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4325870?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9410830-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4325870 about?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4325870?

Compensation: Loss of use - dumbwait…: $125.00 awarded to tenant; Compensation: Loss of use of the poo…: $1,000.00 awarded to tenant; Compensation: Miele dryer reimbursem…: $350.68 awarded to tenant; Compensation: Water issue identifica…: $392.12 awarded to tenant; Smoke Alarms: $3,000.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4325870?

The primary dispute was Healthy homes. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4325870?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9410830-Tribunal_Order.pdf.

27 Takutai Street, Parnell, Auckland 1052 Tenancy Tribunal Case 4325870 — Healthy homes

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4325870 — net $7,888.24 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Healthy Homes Standards breach	$3,000.00	Healthy Homes Standards breach
Compensation: Miele dryer reimbursement	$350.68	Miele dryer reimbursement
Compensation: Water issue identification	$392.12	Water issue identification
Compensation: Loss of use of the pool	$1,000.00	Loss of use of the pool
Exemplary damages: Expired smoke alarms	$3,000.00	Expired smoke alarms
Compensation: Loss of use - dumbwaiter	$125.00	Loss of use - dumbwaiter
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,888.24
Total payable by Landlord to Tenant	$7,888.24

No suppression orders apply around publication of this decision.

Barfoot & Thompson Limited Parnell As Agent For Mark & Joanna Bramley must pay [The tenant/s] and [The tenant/s] $7,888.24 immediately, as per the table below. This can be paid by way of a rent credit.

The landlord must carry out the following work to the premises, which must be completed by 2 nd June 2023: a. Replace or repair the fridge.

Reasons

This order is to be read in conjunction with the orders made on 6 th August 2022 and 19 th October 2022.

Both parties attended the hearing on 21 st February 2023.

The hearing was for the tenant’s remaining claims: a. Reimbursement for fixing the Miele Dryer; b. Reimbursement of $392.12 for water issue diagnosis; c. Loss of use of swimming pool from 11 th November 2022 to 11 th January 2023; d. Work order for swimming pool heat pump to be fixed; e. Exemplary damages for expired smoke alarms and 110 days delay in getting them replaced; f. Exemplary damages for breach of Healthy Homes Standards (“HHS”), false and misleading HHS statement, and refund of $559.10 for HHS reports; g. Compensation for loss of use of storage room/gym area; h. Compensation for loss of use of bedroom 2; i. Recognition of loss of use of dishwasher; j. Compensation and work order for loss of use of dumbwaiter; k. Work order for repair or replacement of the fridge; l. Work order for repair or replacement of the fireplace; m. Work order for master bedroom ensuite toilet; n. General compensation for failure to maintain; and o. Market rent reduction.

The landlord had made a cross-application for rent arrears and water rates but withdrew both claims at the hearing.

At the hearing, the tenant confirmed that the work order for master bedroom ensuite toilet and work order for the swimming pool heat pump were no longer pursued. It was also confirmed that no compensation was sought for the loss of use of dishwasher. Therefore, those claims are not considered in any detail in this order.

After perusing the voluminous material submitted by both parties, I make the following findings. Reimbursement for fixing the Miele Dryer 4325870, 44177313

In the Tribunal order dated 19 th October 2022, I had made an order for the landlord to reimburse the tenant for the cost incurred in fixing the Miele dryer.

There was an omission of $350.68 that had been incurred by the tenant for the initial diagnosis of the issues.

The tenant had proved the expense incurred by producing an invoice.

Although the landlord was not given an opportunity to diagnose this, I find that the cost is reasonable in the circumstances. The landlord would have paid the same for a Miele specialist.

Accordingly, I order the landlord to pay the tenant $350.68 as reimbursement for the diagnosis expenses.

The tenant had sought interests on the amounts awarded. The Tribunal does not order interests on costs. Therefore, there are no additional amounts awarded for interests. Water rates dispute

The tenant claimed that there were issues with the water rates amount charged to the tenant.

The tenant said that there was a leak in the dripline of the sprinkler and there was an excessive amount of water charged against the tenant as a result.

The tenant had provided a statement from Thinkwater Auckland describing the identification and diagnosis of the leak which occurred on 23 rd My 2023.

Having seen the statement from Thinkwater Auckland, I am satisfied that the tenant has proven that there was a leak in the dripline of the sprinkler.

The statement had sufficiently explained the water rates dispute to the point of the landlord withdrawing the claim against the tenant for water rates arrears.

The tenant had incurred $392.12 engaging with the services of Thinkwater Auckland.

I order the landlord to reimburse the tenant this amount. Loss of use of the swimming pool

In the order dated 19 th October 2022, I made an order for the pool to be cleaned by no later than 28 th October 2022.

On 21 st October 2022, the pool technician reported that the pool could not be vacuumed as the water level was too low.

The landlord emailed the tenant asking them to top up the water so the pool could be vacuumed. 4325870, 44177314

On 27 th October 2022, the landlord again asked the tenant to top up the water so the pool could be vacuumed.

On 28 th October 2022, the pool was vacuumed.

On 4 th November 2022, the pool technician completed a full valet of the pool.

Between then and 30 th November 2022, no pool cleaning took place due to the technician falling ill with COVID-19.

The landlord organised another technician to clean the pool on 30 th November 2022.

Between 21 st October 2022 and 30 th November 2022, the tenant had filled the pool with water but found that the water levels had been dropping.

The tenant concluded that the pool must be leaking and discussed the possibility of a leak in the pool or the filter system with the landlord’s pool technician on 30 th November 2022.

On 2 nd December 2022, it was determined that due to the continued subsidence of the area where the pool filter and heat pump were located, the equipment had been damaged and a concrete pad with a retaining wall would need to be installed and equipment replaced.

The repairs were completed on 20 th December 2022, however, the pool maintenance scheduled for 28 th December 2022 did not take place until 5 th January 2023.

The landlord explained that the landlord simply could not get anyone to attend to the pool in that peak period.

The pool became available for use again on 11 th January 2023.

The tenant had sought $9,000.00 for the pool being unusable for the 9-week period.

However, the tenant had been overseas between 12 th December 2022 and 10 th January 2023. The tenant said that their guests were unable to use the pool during their absence.

Further to that, the tenant said that the outdoor heat pump was not useable from 19 th January 2023 until 15 th February 2023.

Given the time of the year, the impact of the heat pump failure would not have been significant.

I acknowledge that the loss of use of the pool during the peak season. I also acknowledge that the tenant had been overseas for about a month during the peak season.

I order the landlord to pay the tenant $1,000.00 for the loss of use of the pool. This is a nominal amount to acknowledge the loss of use. 4325870, 44177315 Exemplary damages for expired smoke alarms

The tenancy agreement signed by the parties had noted that all smoke alarms were working.

Although the tenancy began on 11 th December 2021, when an HHS inspection was conducted on 6 th July 2022, it was found that two smoke alarms had already been expired prior to the commencement of the tenancy.

This HHS report was provided to the landlord on 28 th July 2022.

Surprisingly, the landlord did not replace the smoke alarms for another 110 days. They were finally replaced on 15 th November 2022.

Under section 45 of the Residential Tenancies Act 1986 (“RTA”), a landlord must comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

Breaching this obligation 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 RTA.

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) RTA.

I accept that Barfoot & Thompson did not know about the expired fire alarms at the beginning of the tenancy. An agent of Barfoot & Thompson who initially did the inspection said that the test button was pressed during the initial property inspection using a long stick and the alarms were found to be working. Ordinarily the alarms are unscrewed, and the expiry dates checked however given the high ceilings and time constraints at the time the witness did not check the alarms as she would normally do. Although the landlord may have been careless, negligent and reckless in not checking the smoke alarms at the beginning of the tenancy, I find that not replacing the smoke alarms for 110 days after being notified was intentional.

The landlord explained that the smoke alarms were not replaced for 110 days as they were part of the claims before the Tribunal. I find that explanation highly unsatisfactory.

I find that the landlord has intentionally failed to replace the smoke alarms. This had put the tenant in great potential danger and there is public interest in ensuring that the tenants are kept safe by ensuring that the landlords maintain the smoke alarms.

I order the landlord to pay the tenant $3,000.00 in exemplary damages. 4325870, 44177316 Exemplary damages for breach of HHS

The tenant said that Barfoot & Thompson’s agent had told the tenant that the house was HHS compliant during the initial walk through on 17 th November 2021.

The landlord denied saying that as at the time Barfoot & Thompson were not agents for the owner yet and did not have the HHS information to confirm.

The tenant claimed that the tenant would not have moved into the premises if the premises was not HHS compliant and alleged that there was false representation regarding HHS.

I find that Barfoot & Thompson would not have been in a position to confirm HHS status and find that there may have been a miscommunication or misunderstanding between the parties during the initial inspection.

Regardless of that, on the tenancy agreement itself, it had been noted that the premises was HHS compliant. However, subsequently on 13 th December 2021, the landlord provided the tenant with a section 13A Health Homes Statement saying that the premises “will comply” with the HHS.

As the tenancy had begun on 11 th December 2021, the premises had to be HHS compliant within 90 days. This means that the premises had to be HHS compliant by 11 th March 2022.

However, the landlord did not commission any HHS inspection to confirm that the premises was HHS compliant by the due date.

Despite this, on 25 th March 2022, the landlord issued a statement that the premises complied with HHS. The landlord explained that there was a genuine belief that the premises met the HHS at the time. However, there was no logical or objective basis for this genuine belief.

On 4 th July 2022, the tenant commissioned their own independent HHS report where it was found that the premises was not HHS compliant.

HHS report noted that there was no ground moisture barrier, there were draught issues, there was insufficient insulation on floor and the ceiling and that the heating was insufficient.

This tenant provided this report to the landlord on 28 th July 2022.

However, despite attempts by the tenant, the landlord did not attend to the issues raised in the HHS report. Instead, the landlord raised issues as to the accuracy of the tenant’s report and this resulted in the tenant commissioning a second HHS report with a different company.

Pursuant to the Tribunal order dated 19 th October 2022, the landlord commissioned their own HHS report on 2 nd November 2022. The findings of that report were substantially similar to the two HHS reports commissioned by the tenant. 4325870, 44177317

It was not entirely clear why the landlord had failed to get the premises inspected for HHS by the due date.

Fortunately, the premises became HHS compliant as of 16 th February 2023.

The tenant sought reimbursement of the two HHS reports. Initially, I had considered only awarding the reimbursement of the first report. However, it seems clear that the only reason for the second report being commissioned was due to being challenged by the landlord. Instead of challenging its contents, the landlord should have commissioned its own.

I order the landlord to reimburse the tenant the cost of two HHS reports of $559.10.

Furthermore, I find that the landlord had intentionally failed to adhere to the HHS requirement. I find that there is public interest in ensuring the premises are HHS compliant by the due dates. There is interest in ensuring that the tenants live in HHS complaint premises.

I order the landlord to pay the tenant $3,000.00 in exemplary damages.

I do not order any award for any false representation of HHS status. I find that they were grossly negligent but not intentional. Compensation for loss of use of storage room/gym area

The tenant claimed that the landlord had misrepresented the availability of the storage room/gym area during the initial viewing of the premises.

The tenant said that it was only later found to be unavailable when the tenancy commenced.

The landlord said that it was clearly explained to the tenant before the commencement of the tenancy that the landlord’s storage space was not included in the tenancy. On the chattels list sent to the tenant on 10 th December 2021, it was noted “downstairs office storage no access.” This was something that had been sent to the tenant prior to the tenancy agreement being signed.

I am satisfied that there was no misrepresentation of the availability of the storage room or the gym area. There is no loss of use of any promised area of the house.

This claim is dismissed. Compensation for loss of bedroom 2

The tenant sought $31,876.00 for the loss of use of bedroom 2.

The tenant claimed that the furnishing in bedroom 2 were below that of the standard represented by the landlord or expected by the tenant. 4325870, 44177318

The tenant had requested for the bed and mattress to be removed from the bedroom. The tenant said that the mattress was stained, and the tenant said that it was unhygienic to use.

The tenant had also subsequently moved a couch and coffee table into the bedroom and said that the bedroom was being used as a storage.

The landlord subsequently removed the mattress. The tenant initially sought for the Tribunal to order the bed frame to be removed from bedroom 2 to allow the tenant to purchase their own bed and mattress.

Prior to the hearing, the landlord had removed the bed frame from the room and no work order was needed.

Regarding the usability of the room, the landlord provided a photo taken from September 2022 showing the bed and mattress actually being used by the tenant. It seemed that the room was being used as a guest room.

I find that the tenant has failed to prove any substantial loss of use of bedroom.

The tenant also raised issues regarding other furnishings provided being not up to the standard expected for a $3,000.00 weekly rental.

There was no suggestion that any of the furnishings had deteriorated since the tenant’s initial viewing of the premises. I do not find that there was any misrepresentation of any sort.

This claim is dismissed. Compensation and work order for loss of use of dumbwaiter

The tenant sought compensation and work order to fix the dumbwaiter.

The dumbwaiter had failed on 24 th November 2022 and had not been fixed since.

The landlord was finding it difficult to have it fixed.

The dumbwaiter saves the tenant from carrying food or groceries from ground floor to the first floor. It is a convenient feature of the premises. However, by no means is it a critical component of the premises.

I order the landlord to pay the tenant $125.00 for the loss of use of the dumbwaiter.

The landlord is to compensate the tenant $5.00 per week for the loss of use of the dumbwaiter until it is fixed.

I decline to make any work order to have the dumbwaiter fixed in case the dumbwaiter simply cannot be fixed. Work order for repair or replacement of the refrigerator 4325870, 44177319

The tenant said that the fridge was not working properly and had not been perfect since the second week of the tenancy.

The landlord acknowledged that the fridge had an issue. At the hearing the landlord said that the fridge would be replaced within 3 weeks.

By the time of this order, the fridge should have been replaced.

If not, the landlord must replace or repair the fridge within 2 weeks of this order. Work order for repair or replacement of the fireplace

At the previous hearing, the landlord said that there was no replacement battery available for the fireplace.

Since then, the tenant made numerous inquiries to have the fireplace repaired.

On 6 th January 2023, the tenant was able to organise a technician to order a battery from overseas.

As at the time of the hearing, the battery was still in transit.

There is no guarantee that the battery would fix the fireplace. It sounds promising but I do not make any work order for the fireplace to be fixed in case it simply cannot be fixed.

I do not award any further compensation in addition to the previously awarded amount for the lack of fireplace. General compensation for failure to maintain

The tenant sought for compensation for having to deal with the numerous issues with the premises and unreasonable delays in resolution of the issues.

The tenant had recorded all the issues and how many days it has taken to resolve each issue.

Although the tenant may have spent significant time in going through and documenting everything, that does not warrant any compensation or reimbursement.

The landlord had also spent a considerable amount of time responding to all of the tenant’s claims.

I decline to award any compensation for the time spent by the tenant.

Costs are to lie where they fall. Market rent reduction 4325870, 441773110

The tenant wished the Tribunal to reconsider the application for market rent reduction.

The application for market rent reduction was originally lodged out of the statutory time limit.

The tenant said that as the original fixed-term tenancy had ended on 9 th December 2022, the subsequent period tenancy was a “new tenancy” which would allow the Tribunal to have market rent reduction reconsidered.

Section 60A RTA makes it clear that on the expiry of a fixed-term tenancy, the tenancy “continues” as a periodic tenancy with the same terms as the terms contained in the expired tenancy.

This means that it is a continuation of the previous tenancy and is not a new tenancy.

Therefore, I dismiss this claim. Filing fee reimbursement

Because the tenant has substantially succeeded with the claim, I order the landlord to reimburse the filing fee. Name suppression

The tenant did not seek name suppression.

Although the landlord sought name suppression, there is nothing identified by the landlord to depart from the principle of open court.

Therefore, no suppression orders apply to this order.

Order

Claims and awards in Tenancy Tribunal application 4325870 — net $7,888.24 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Healthy Homes Standards breach	$3,000.00	Healthy Homes Standards breach
Compensation: Miele dryer reimbursement	$350.68	Miele dryer reimbursement
Compensation: Water issue identification	$392.12	Water issue identification
Compensation: Loss of use of the pool	$1,000.00	Loss of use of the pool
Exemplary damages: Expired smoke alarms	$3,000.00	Expired smoke alarms
Compensation: Loss of use - dumbwaiter	$125.00	Loss of use - dumbwaiter
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,888.24
Total payable by Landlord to Tenant	$7,888.24