What was the outcome of Tenancy Tribunal case 4328229?

The tribunal order states: This order replaces the previous order dated 8th November 2023.

How much money was awarded in case 4328229?

Property Damage: $28.35 awarded to landlord; Cleaning: $100.00 awarded to landlord; Cleaning: $100.00 awarded to landlord; Cleaning: $37.98 awarded to landlord; Cleaning: $150.00 awarded to landlord; Cleaning: $63.58 awarded to landlord; Cleaning: $25.00 awarded to landlord; Cleaning: $75.00 awarded to landlord; Cleaning: $50.00 awarded to landlord; Cleaning: $50.00 awarded to landlord; Cleaning: $50.00 awarded to landlord; Smoke Alarms: $500.00 awarded to landlord; Lawns and Garden Work: $265.98 awarded to landlord; Meth Test Kit: $43.50 awarded to landlord; Property Damage: $200.00 awarded to landlord; Rent Arrears: $3,400.00 awarded to landlord; Bath Tub: $550.00 awarded to landlord; Bathroom Floors: $403.59 awarded to landlord; Garage Cladding: $550.00 awarded to landlord; Garage Door: $550.00 awarded to landlord; Lounge Wall Hole: $100.00 awarded to landlord; Replace Furnishings: Oven: $550.00 awarded to landlord; Replace Furnishings: Sink Plugs X 3: $55.83 awarded to landlord; Replace Furnishings: Smoke Detector: $19.00 awarded to landlord; Rubbish Removal: $203.38 awarded to landlord; Water Rates: $106.82 awarded to landlord; Window Catch: $14.40 awarded to landlord

What type of tenancy dispute was case 4328229?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness, Smoke alarms.

Where can I read the official tribunal order for case 4328229?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9654688-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4328229?

The tribunal order states: This order replaces the previous order dated 8th November 2023.

How much money was awarded in case 4328229?

Property Damage: $28.35 awarded to landlord; Cleaning: $100.00 awarded to landlord; Cleaning: $100.00 awarded to landlord; Cleaning: $37.98 awarded to landlord; Cleaning: $150.00 awarded to landlord; Cleaning: $63.58 awarded to landlord; Cleaning: $25.00 awarded to landlord; Cleaning: $75.00 awarded to landlord; Cleaning: $50.00 awarded to landlord; Cleaning: $50.00 awarded to landlord; Cleaning: $50.00 awarded to landlord; Smoke Alarms: $500.00 awarded to landlord; Lawns and Garden Work: $265.98 awarded to landlord; Meth Test Kit: $43.50 awarded to landlord; Property Damage: $200.00 awarded to landlord; Rent Arrears: $3,400.00 awarded to landlord; Bath Tub: $550.00 awarded to landlord; Bathroom Floors: $403.59 awarded to landlord; Garage Cladding: $550.00 awarded to landlord; Garage Door: $550.00 awarded to landlord; Lounge Wall Hole: $100.00 awarded to landlord; Replace Furnishings: Oven: $550.00 awarded to landlord; Replace Furnishings: Sink Plugs X 3: $55.83 awarded to landlord; Replace Furnishings: Smoke Detector: $19.00 awarded to landlord; Rubbish Removal: $203.38 awarded to landlord; Water Rates: $106.82 awarded to landlord; Window Catch: $14.40 awarded to landlord

What type of tenancy dispute was case 4328229?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness, Smoke alarms.

Where can I read the official tribunal order for case 4328229?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9654688-Tribunal_Order.pdf.

12 Ragley Street, Titirangi, Auckland 0604 Tenancy Tribunal Case 4328229 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Claims and awards in Tenancy Tribunal application 4328229 — net $8,242.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 06/12/2021	$3,400.00	Rent arrears to 06/12/2021
Water rates	$106.82	Water rates
Lock/key replacement	$200.00	Lock/key replacement
Cleaning: Exterior house wash	$150.00	Cleaning: Exterior house wash
Cleaning: Garage cleaning	$63.58	Cleaning: Garage cleaning
Cleaning: Lounge	$50.00	Cleaning: Lounge
Cleaning: Kitchen and dining	$75.00	Cleaning: Kitchen and dining
Cleaning: Hall	$25.00	Cleaning: Hall
Cleaning: Bedrooms	$100.00	Cleaning: Bedrooms
Cleaning: Toilet	$50.00	Cleaning: Toilet
Cleaning: Bathroom	$100.00	Cleaning: Bathroom
Cleaning: Porch	$50.00	Cleaning: Porch
Cleaning: Disinfect paths and garage floor	$37.98	Cleaning: Disinfect paths and garage floor
Rubbish removal	$203.38	Rubbish removal
Lawns and Garden work	$265.98	Lawns and Garden work
Replace furnishings: Sink plugs x 3	$55.83	Replace furnishings: Sink plugs x 3
Replace furnishings: Smoke detector	$19.00	Replace furnishings: Smoke detector
__________________________________________________________________________________ 4328229, 43090042 Repairs: Missing do	$28.35	__________________________________________________________________________________ 4328229, 43090042 Repairs: Missing do
Repairs: Bath tub	$550.00	Repairs: Bath tub
Repairs: Bathroom floors	$403.59	Repairs: Bathroom floors
Repairs: Garage door	$550.00	Repairs: Garage door
Repairs: Garage cladding	$550.00	Repairs: Garage cladding
Meth test kit	$43.50	Meth test kit
Window catch	$14.40	Window catch
Repairs: Lounge wall hole	$100.00	Repairs: Lounge wall hole
Replace furnishings: Oven	$550.00	Replace furnishings: Oven
Exemplary damages: removing smoke alarm	$500.00	removing smoke alarm
Net award	$8,242.41
Total payable by Tenant to Landlord	$8,242.41

Claims and awards in Tenancy Tribunal application 4328229 — net $8,242.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.

Claim

Landlord

Tenant

Reason

Rent arrears to 06/12/2021

$3,400.00

Rent arrears to 06/12/2021

Water rates

$106.82

Water rates

Lock/key replacement

$200.00

Lock/key replacement

Cleaning: Exterior house wash

$150.00

Cleaning: Exterior house wash

Cleaning: Garage cleaning

$63.58

Cleaning: Garage cleaning

Cleaning: Lounge

$50.00

Cleaning: Lounge

Cleaning: Kitchen and dining

$75.00

Cleaning: Kitchen and dining

Cleaning: Hall

$25.00

Cleaning: Hall

Cleaning: Bedrooms

$100.00

Cleaning: Bedrooms

Cleaning: Toilet

$50.00

Cleaning: Toilet

Cleaning: Bathroom

$100.00

Cleaning: Bathroom

Cleaning: Porch

$50.00

Cleaning: Porch

Cleaning: Disinfect paths and garage floor

$37.98

Cleaning: Disinfect paths and garage floor

Rubbish removal

$203.38

Rubbish removal

Lawns and Garden work

$265.98

Lawns and Garden work

Replace furnishings: Sink plugs x 3

$55.83

Replace furnishings: Sink plugs x 3

Replace furnishings: Smoke detector

$19.00

Replace furnishings: Smoke detector

__________________________________________________________________________________ 4328229, 43090042 Repairs: Missing do

$28.35

__________________________________________________________________________________ 4328229, 43090042 Repairs: Missing do

Repairs: Bath tub

$550.00

Repairs: Bath tub

Repairs: Bathroom floors

$403.59

Repairs: Bathroom floors

Repairs: Garage door

$550.00

Repairs: Garage door

Repairs: Garage cladding

$550.00

Repairs: Garage cladding

Meth test kit

$43.50

Meth test kit

Window catch

$14.40

Window catch

Repairs: Lounge wall hole

$100.00

Repairs: Lounge wall hole

Replace furnishings: Oven

$550.00

Replace furnishings: Oven

Exemplary damages: removing smoke alarm

$500.00

removing smoke alarm

Net award

$8,242.41

Total payable by Tenant to Landlord

$8,242.41

Order

This order replaces the previous order dated 8th November 2023.

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.

Claire Kirsten Mole and Gavin Roy Foley must pay Rosamund Goodliffe $8,242.41 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing on 15 th June 2023.

This case has a long history. The parties had originally filed their application and cross-application in July 2021.

Some parts of the applications were finalised at previous hearings and some hearings were adjourned part-heard.

Some hearing had to be adjourned due to COVID-19 restrictions and a number of hearings had to be adjourned due to the landlord having to wait for insurance cover details.

The tenancy started on 31 st January 2021 and the landlord’s original application for conditional termination was granted at a previous hearing. Eventually, the tenancy ended on 6 December 2021.

The landlord applied for rent arrears and compensation following the end of the tenancy.

The tenant made a cross-application for compensation and damages, exemplary damages and raised issues with the Healthy Homes Standard (“HHS”).

I deal with the landlord’s application first.

How much is owed for rent and water invoices?

The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

The amounts sought by the landlord were not disputed by the tenant.

I order the tenant to pay the rent arrears of $3,400.00 and water rates of $106.82. 4328229, 43090043

Further to this, as the bailiffs had to be called to evict the tenant, I grant the landlord’s application for lock replacement.

The tenant did not dispute the lock replacement cost of $200.00. The rules regarding cleaning and damage claims

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, and leave all chattels provided for their benefit. See section 40(1)(e) Residential Tenancies Act 1986 (“RTA”).

For damage claims, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent. See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty.

The Tribunal also takes into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, The Tribunal takes into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

I refer to each claim in turn. Fences, walls and driveway 4328229, 43090044

The landlord claimed that the tenant had driven into the fences and concrete block walls and damaged the retaining wall. The landlord had obtained a quote for $15,916.00.

The landlord provided an email from 31 st May 2021 where the landlord told the tenant that the “concrete wall by the driveway had been knocked down and broken. Please repair the wall to how it was when you moved. In order to preserve the integrity of the walls and concrete hardstanding area to the right at the top of the drive. Please park straight, rather than to the right at the top of the drive. Your vehicle is large and there isn’t enough space to manoeuvre.”

The tenant disputed having damaged the fences and the walls and said that the email was in relation to a different part of the fence. Further to that, the tenant said that they had been asked to provide a quote for the fence at the beginning of the tenancy to use for a damage claim against the previous tenant.

Having compared the photos from the beginning of the tenancy and at the end of the tenancy and having heard from both parties, I do not find that the landlord has proven that the tenant had damaged the fences, walls and the driveway.

This claim is dismissed. Front lawns, grounds, gardens and weatherboard

The landlord claimed that the, lawn was damaged and needed re-grassing including there being tyre gouges on either side of the drive. Plants had been removed from the garden beds, sawdust dumped in garden beds, in lawns, up wall of house, in a cardboard box on path along with broken glass and general waste.

The sawdust on the weatherboard had caused rust mould and needed to be treated and possibly repainted. The letter box was also damaged and discarded branches from firewood sawing, lots of wooden planks, roadworks equipment and garden waste were strewn killing the lawn underneath.

The tenant accepted having run a firewood business from the premises, cutting wood and causing some damage as a result.

Having seen the photos, I order the tenant to pay the landlord $265.98 comprised of $125.00 for 5 hours of labour for filling tyre gouges and reseeding the grass, $49.98 for lawn seeds, $10.00 for lawn soil and $81.00 for disposal.

Further to that, I also order the tenant to pay the landlord $150.00 for the exterior house wash that was required. Garage door and framing, garage and under house

The landlord claimed that: 4328229, 43090045 a. the automatic garage door was broken; b. parts of the door mounting were damaged or missing; c. the garage light bulb was missing; d. the garage framing structure was damaged; e. the garage was dirty and choked from floor to ceiling with sawdust and wood shavings; f. there were abandoned goods dumped in the garage; g. the power cable to power points over the workbench had been cut; h. there was an overpowering smell of something decomposing in the garage; i. a bag of decomposing maggots infested remains was found; and j. there was a scale found along with point bags.

The tenant did not dispute $14.40 for emptying of the council rubbish bins (rubbish removal), garage cladding replacement insurance excess of $550.00, $63.58 for cleaning and treatment required for garage floors, walls and path, and $50.00 for removing abandoned items and sawdust (rubbish removal).

The tenant did dispute the motor damage and impact damage of the garage door, however, having considered the evidence and having heard from both parties, I find that the landlord has proven the claim. I order the tenant to pay the insurance excess of $550.00.

However, I do not find that the landlord has proven that the tenant has damaged the lights and electricals. I do not grant this claim.

There were photos taken on 6 th December 2021 showing methamphetamine point bags being found. It is to be noted that a witness saw someone who was helping the tenants move out smoking from what appeared to be a methamphetamine glass pipe. The tenant is liable for actions of people being at the premises with the tenant’s permission.

I order the tenant to pay the $43.50 incurred by the landlord for a methamphetamine test kit. Lounge

The landlord claimed that there were smashed holes and nails in walls, curtains that required replacing and curtains tracks with missing hooks. The carpet was stained and had burn holes. In front of the fireplace, there were burns that went right through to the underfelt. The walls, ceiling, windows were all covered in a film of sawdust. There were cobwebs on walls. A window catch was missing and fireplace was choked with burnt plastic, cigarette packets and a glass pipe. 4328229, 43090046

Of those, I find that the landlord has proven the need for cleaning, missing window catch and some damage to the wall. I order the tenant to pay the landlord $50.00 for the required cleaning, $14.40 for the missing window catch and $100.00 to repair the smashed hole in the wall.

I do not find that the landlord has proven that the curtains, hooks, and tracks were more than fair wear and tear. Regarding the carpet, I do not find that it was damage caused by the tenant. I dismiss these claims. Dining room/Kitchen

The landlord claimed that the dining room and kitchen were not left reasonably clean. The curtains were not rehung and had missing hooks, curtain tracks damaged, there was a large carpet stain, kitchen nets dirty and ripped, lightbulb missing, lino gouged with holes, 2 nail holes in walls, and filthy oven and corroded hot plate making it unusable. The sink plug was missing. A methamphetamine point bag was also found.

The tenant denied that the sink plug was there in the first place. However, the landlord had photos proving the existence of the sink plug at the beginning of the tenancy. From the photos, I find that the floors, walls, windows and cupboards needed cleaning and the hot plates of the oven were corroded to the extent that the entire oven needed replacing.

I order the tenant to pay the landlord $25.54 for a replacement sink plug, $75.00 for cleaning and $550.00 insurance excess for replacing the oven.

I do not find that the ranch slider curtains or the curtain tracks were more than wear and tear, the methamphetamine kit has already been awarded above and the landlord had not proven that the lights were damaged by the tenant. I decline to grant any amounts for these items. Pantry/Laundry

The landlord claimed cleaning costs for dirty doors, shelves, ceiling in the pantry and that the mesh in the door was full of sawdust. The landlord also said that there were light bulbs missing. Further, the laundry was also dirty and cleaning was required for the floor, windows, sink and walls. A door that had fallen off and was leaning against a wall that was covered in greasy hand marks. Parts of the door slider were bent and some were missing and the landlord claimed that it was due to impact damage. The flooring was covered in circular rusty bucket marks and a laundry sink plug was also missing. The landlord said there was also blood on the floor.

Having heard from both parties, I find that the landlord has proven the need for cleaning and the replacement of the sink plug. However, the cleaning costs for 4328229, 43090047 the pantry and laundry have been incorporated in the cleaning costs for the kitchen above. I find the door damage was not due to any carelessness or intentional actions of the tenant but was due to its inherent design issues, I find the floor marks were pre-existing.

As such, I only order the tenant to pay the landlord the sink plug of $25.54 which was not disputed. Hall

The landlord claimed that the hall was not left reasonably clean. The floors, walls, and cupboards were dirty. Both light shades were full of sawdust. The smoke detector was missing and one light did not work. Some curtains which had been removed were on the hall cupboard floor but a glass light fitting had been smashed onto them making the curtains not fit for rehanging.

The linen cupboard, hot water cupboard shelving and ceiling access had been removed. The ceiling insulation was scattered inside the cupboards and on the floor due to the tenant having removed them from the ceiling. The hall carpet had trails of bleach spots.

The tenant did not dispute that the hall needed cleaning, shelving needed returning and one smoke detector needed to be replaced.

I order the tenant to pay the landlord $25.00 for cleaning the hall and $19.00 for replacing the smoke detector.

I do not award any amounts for the curtains due to depreciation. I find that the landlord has not proven the lights or the carpet claims. I do not grant any amount for the lights or the carpet. Bedroom 1

The landlord claimed that bedroom 1 was not left reasonably clean. The curtains had not all been replaced and there was blood on those which were left hanging. The were nail holes in walls, sawdust on windows and walls. The landlord claimed that the light did not work and that the HRV outlet had been taped over.

The tenant did not dispute the need for cleaning. As per the previous claim, I do not find that the landlord has proven those claims.

I order the tenant to pay the landlord $25.00 for cleaning and remediation. Toilet

The landlord claimed that the toilet was not left reasonably clean. It was left dirty and blocked. The floors, walls, ceiling, window and the net curtain all had sawdust. 4328229, 43090048

I order the tenant to pay the landlord $50.00 for cleaning the toilet. Bathroom

The landlord claimed that the bathroom was not left reasonably clean. The bathroom had been flooded and there was a large hole in the bath. The vanity cupboard had warped from the flooding. The bath plug and some of the tiles were missing. The shower head was not working properly and there was sawdust and mould present.

Having heard from the parties and having seen the photos, I find that the landlord has proven the claims. The tenant accepted having dropped the shower head and creating a hole in the bath and that the flooring required to be replaced as a result of the hole in the bath.

There was no dispute that the bath plug was missing.

I order the tenant to pay the landlord $550.00 for the insurance excess to replace the bath, $403.59 for careless damage to the floor, $4.75 for the bath plug and $100.00 for cleaning and drying of the bathroom. Master bedroom

The landlord claimed that the master bedroom was not left reasonably clean with sawdust being everywhere. The door handle was missing, the HRV outlet had been blocked by tape, curtains not replaced and hooks missing, duct tape on walls and ceiling and the walls, floor and carpet all dirty. The chandelier and windows were also dirty.

Having seen the photos, I find that the landlord has proven that the master bedroom was not left reasonably clean.

I order the tenant to pay the landlord $50.00 for cleaning the master bedroom and $28.35 for the missing door handle.

I do not award any amount for the curtains. Bedroom 3

The landlord claimed that bedroom 3 was not left reasonably clean. The claim included a missing bulb, nail holes, mirror missing the cord to hang it back up.

I find that the landlord has proven the cleaning required. I order the tenant to pay the landlord $25.00 for the cleaning. Other claims have not been proven. Porch 4328229, 43090049

The landlord sought cleaning for the porch as the floors were full of litter and very dirty. The walls, windows, and ceilings were grimy and choked with dust.

Having considered the evidence, I find that the landlord has proven this claim. I order the tenant to pay the landlord $50.00 for cleaning of the porch. Back area outside house

The landlord claimed that the back area outside the house required rubbish removal and that the trellis required replacing.

The landlord claimed that there were large number of bags full of putrid smelling rubbish along with other junk. The lawns were very overgrown and had turned into weeds. The tenant had dumped bags of ceiling insulation in the garden. There were rugs, door mats and hearth mats left outside to rot.

The painted trellis (lined with mesh netting) that had been attached between the underneath of the conservatory and the ground had been smashed in. The pieces were too small to re-attach and needed to be completely replaced. The landlord had sought $100.2 for the labour and the material for replacing the trellis.

The tenant did not dispute the need for rubbish removal and accepted $138.98 sought by the landlord.

However, the tenant disputed any liability for removing the trellis. The tenant explained that it had been removed with the landlord’s previous consent.

The landlord could not remember this and could not rebut what the tenant claimed.

Having heard both parties, I am not satisfied that the landlord has proven that she had not consented to the tenant removing the trellis. Therefore, I do not grant any amounts for replacing the trellis. General claims

The landlord claimed that the back gardens and the garage were not left reasonably clean. The paths had rubbish and sawdust covering it and required cleaning and treatment with disinfectant.

Having seen the photos and having heard from the parties, I find that the landlord has proven that the paths were not left reasonably clean.

I order the tenant to pay the landlord $37.98 for disinfecting paths and garage floor. Exemplary damages 4328229, 430900410

The landlord claimed exemplary damages against the tenant in addition to the compensation claims above.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.

The landlord sought costs for frivolous or vexatious claims wasting the landlord’s time and causing pain and suffering leading to an anxiety disorder. The landlord said that a number of events had to be cancelled due to the tenant not leaving when they said they would. The landlord said that some arranged inspections or maintenance were cancelled last minute by the tenant.

Under section 102 of the RTA, the Tribunal can order a party to pay the other party reasonable costs of that other party in connection with the proceedings if the proceedings are frivolous or vexatious or ought not to have been brought.

Although this hearing took many days and many more days for a decision, I find that the tenant’s claims were not entirely frivolous or vexatious. Many of the adjournments were due to the landlord awaiting insurance information and the delays were not necessarily attributable to the tenant.

I decline to award any exemplary damages for the tenant “wasting the landlord’s time”.

The landlord sought exemplary damages for the tenant failing to quit the premises on the termination of the tenancy.

The tenant had to be evicted after there was already an order for termination made against them by the Tribunal.

Under section 40(3A)(a) RTA, it is an unlawful act for a tenant to fail to quit the premises at the termination of the tenancy without a reasonable excuse. The maximum exemplary damage awardable is $1,500.00.

At the hearing, the tenant explained that the tenant tried to leave but they were unable to get emergency housing until they were evicted as there was already a Tenancy Tribunal order against them. The tenant also said that there were difficulties with moving out due to COVID-19 restrictions at the time.

Having heard from the tenant, I find that there is no public interest in awarding exemplary damages in the circumstances.

The landlord also sought for exemplary damages claims for a number of claims including for failure to pay rent, doing unauthorized work, demanding the most expensive asbestos test, sawing down a tree, failure to notify the landlord of damage and misusing or ignoring COVID-19 regulations. Under the RTA, these are not unlawful acts for which exemplary damages can be awarded for. 4328229, 430900411

The only claim that is of concern for exemplary damages is removing the smoke detector. The tenant says that the smoke detector was removed due to the dust from the ceiling insulation possibly being asbestos fibers. There is no evidence that even if the ceiling insulation was asbestos fibers that it would have interfered with the smoke alarm. Once the ceiling insulation was tested and confirmed not to have been asbestos, the smoke alarm should have been replaced.

Of the maximum $4,000.00 exemplary damages awardable, I order the tenant to pay the landlord $500.00 in exemplary damages for the tenant removing the smoke alarm. Tenant’s cross-application

Having fully considered the landlord’s application, now I consider the tenant’s cross-application for compensation, exemplary damages and HHS issues.

It is important to note that this property was not subject to HHS as the tenancy began on 31 st January 2021 which predates the HHS commencement date of 1 st July 2021. Therefore, the premises did not need to be compliant with HHS during the time of the tenancy.

Having said that, the premises still needed to be compliant with insulation, heating, and maintained in a reasonable state.

The flipside of that is that section 40(1)(d) requires the tenant to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.

Section 49 of the RTA requires that if the landlord breaches any of the provisions of the tenancy agreement or the RTA, the tenant must take all reasonable steps to limit the damage or loss arising from that breach.

This means that if there is something that needs to be attended to, the tenant must inform the landlord as soon as possible and take all reasonable steps to limit the damage or loss from that. Without these having been done, it can be difficult for the tenant to be awarded any compensation.

I now consider the tenant’s application in turn. Tenancy agreement issues

The tenant claimed that landlord never sent the tenant a copy of the signed tenancy agreement until the Tenancy Tribunal application was lodged by the landlord.

The landlord said that it was sent and received by the tenant. The landlord explained the multiple ways she had sent it to the tenant. 4328229, 430900412

At the hearing, the tenant checked the email and found that the landlord had indeed sent a copy on 2 nd February 2021. However, it turned out to be the first page only.

It seems that the tenant never checked the landlord’s email from 2 nd February 2021.

However, as the landlord would not have known that the sent attachment only had the first page due to the tenant not raising it, I do not find that this warrants any compensation or exemplary damages.

The tenant also claimed that the landlord did not provide a list of chattels. However, it was clear that there was a chattels list in the agreement. It may not have been included in the attachment inadvertently.

The tenant also claimed that the landlord had not included an insulation statement or the insurance information on the tenancy agreement. It was clear that there was an insulation statement but that it may have been incorrect at the beginning of the tenancy.

The landlord said she had rung Tenancy Services and was following the advice that she had been given. I do not find that the landlord had intentionally misled the tenant with the tenancy agreement.

I do not find that the tenant has adequately raised this issue with the landlord prior to the claims being lodged with the Tribunal in addition to ever checking their emails for a copy of the tenancy agreement.

Compensation and exemplary damages can be awarded for failure to keep to the strict provisions of the RTA. However, this will most likely only occur when there have been efforts by the other party to bring the shortfall to the party’s attention first.

I dismiss the claims relating to the tenancy agreement. Ceiling insulation

The tenant’s major claim against the landlord was regarding the ceiling insulation. The tenant said that the landlord had Insulfluff as ceiling insulation, that it had broken down and was blowing through the HRV system causing the tenant issues with breathing.

The tenant said that the landlord herself was coughing due to the musty air on 13 th May 2021 during the inspection as well.

The landlord had engaged in the HRV service person to have the HRV and the ceiling insulation looked at but the tenant had refused to let a non-asbestos specialist inside the premises due to concerns that the insulation had asbestos in it. 4328229, 430900413

Eventually, the insulation was tested and found not to be asbestos.

The tenant claimed that the inside of the house was filled with fine dust particles from the broken-down insulation and that particles smaller than 10 microns were going through the HRV filter and not allowing the tenant to breathe air inside.

However, the tenant was unable to provide evidence to prove their claims regarding 10 microns or the broken-down insulation going through the HRV filter. More importantly, the tenant was not able to provide any evidence that the dust inside the house was from the ceiling and not the sawdust being blown in from the garage as result of the tenant’s firewood business.

Although I acknowledge the poor air quality, the tenant has not proven that it was from the ceiling insulation breakdown.

The HRV itself had been serviced on 8 th February 2021 and there was a receipt for $875.00.

I dismiss the tenant’s claim regarding ceiling insulation breakdown. The tenant has not proven that it was not the sawdust from the garage. Underfloor insulation, gutter clearing and first day’s rent

The tenant claimed that the landlord had constantly asked the tenant to install underfloor insulation. In addition to this being interference with the privacy of the tenant and the tenant’s quiet enjoyment of the premises, the tenant claimed compensation for the work undertaken in measuring the underfloor, supplying and installing groundcover and installing the insulation. The tenant also sought compensation for the time taken to take and send photographs of the underfloor insulation for the landlord to use in another Tenancy Tribunal hearing.

The landlord explained that she had told the tenant before the beginning of the tenancy that a number of things had to be attended to before the premises could be rented out. This included the underfloor insulation and the gutters being cleared. The tenant volunteered to clean the gutters himself without there ever being any agreement for payment. The landlord was to do the underfloor insulation but the tenant insisted that he would help out.

By way of background, the tenant had grown up in the same street where the premises was and the parties’ families knew each other from before the landlord- tenant relationship.

There was never any agreement made by the parties for payment or any pressure by the landlord on the tenant to perform the work. The tenant could have insisted that the landlord do the work and insist on it by issuing a 14-day notice if she did not. 4328229, 430900414

I find that this was a case of the tenant simply volunteering to help out possibly to help themselves move in the premises earlier.

Furthermore, the tenant sought a refund of the first day’s rent as their tenancy agreement was signed late in the evening and that the tenancy began straight away.

I cannot see any reason for compensation as the late evening start was something that the parties had agreed on due to the insistence of the tenant to start the tenancy immediately.

The power was not connected the first evening but the landlord was never told about this or any compliant received about it ever prior to the Tribunal hearing.

I do not grant any compensation for the underfloor insulation, gutter clearing or the first day’s rent. Interference with the privacy of the tenant and tenant’s quiet enjoyment

The tenant claimed that the landlord and her son had been to the premises in September 2021 and again on 30 th November 2021 interfering with their privacy and quiet enjoyment.

In September the landlord and her son were seen driving past the house, then turning around at the cul-de-sac and stopping just past the house. The landlord’s son verbally abused the tenants with insults and threats like “we will make you pay” and that he shook his fist at the property and then drove off in an aggressive manner.

On 30 th November, the landlord and her son drove slowly past the house, turned around the cul-de-sac and parked in front of the property. The landlord and her son then walked up the driveway to the premises. They acted aggressively towards the female tenant and then lied to the tenant about the bailiff on their way and that they had the Police coming too. There were insults being exchanged and the tenant called the Police.

The landlord explained that they thought the property was abandoned by then as it was past the tenancy termination date. The bailiffs eventually came on 3 rd December 2021 and evicted the tenant.

I am not satisfied that the tenant has proven a pattern by the landlord of interfering with the privacy of the tenant or the tenant’s quiet enjoyment.

It would be difficult for the tenant to argue the right to quiet enjoyment after the termination date when the landlord goes to the property to check that the premises had been vacated.

I do not find that any compensation is warranted for this claim. This claim is dismissed. 4328229, 430900415 Failing to provide the premises in a reasonably clean state

The tenant claimed that the premises was not provided in a reasonable clean state when the tenant first moved in. The tenant claimed $250.00 for initial cleaning and $180.00 for washing the walls and water blasting the pathways.

The tenant claimed that the property was very dirty, and that the back rear wall of the house needed deep cleaning and there was moss and algae covering the paths along with piles of vegetation. The tenant said that the carpet was unwashed and soiled with dirt in all corners.

The landlord argued that the premises was reasonably clean and tidy and that she had used sugar soap to clean the house and had thoroughly vacuumed the premises.

Having heard from both parties and having seen the photos, I am not satisfied that the tenant has proven this claim to the required standard. This claim is dismissed. Failing to maintain the premises

The tenant claimed that the premises was not provided in a reasonably state of repair and not reasonably maintained.

The tenant claimed that all retaining walls were unstable, the mortar had eroded and the concrete retaining blocks were loose and dangerous. The tenant said that it was due to the water ingress.

The tenant claimed that they had mentioned this in the 14-day notice on 8 th June 2021. However, it seems that the 14-day notice was mostly in relation to HHS which was not applicable to the premises at the time.

The tenant said that the stairs at the front and rear were damaged loose and were broken.

The tenant said that these were only raised verbally because the HRV and the ceiling insulation had been the most pressing issues at the time.

The landlord said that the tenant said that he would repair the concrete blocks and said that the steps had been reasonably maintained.

I am not satisfied that the tenant had reported the issues to the landlord adequately and am not satisfied that it needs any compensation.

I do not find that the claims has been proven. 4328229, 430900416 Failing to comply with the heating standard

As this premises was not subject to HHS, I only consider whether the fireplace was reasonably maintained or not.

The tenant said that the landlord had not cleaned the chimney or the fireplace for the past 7 years. The tenant said that this could be proven by there being a newspaper dated 2016 in the fireplace.

The tenant said that the fireplace was inefficient and had a “homemade” draught blocker and had gaps and was ineffective. It allowed for draughts to blow ash into the living room further increasing dust particles in the air.

The landlord said that she had offered to get someone in to have the chimney swept but that the tenant said that he would sweep it and that he had proper tools. The fireplace had been blocked off by the landlord.

The tenant denied ever having said that, but the landlord said that he was very quick to say “I will do it” much like the gutter cleaning or the underfloor insulation.

In the evidence, there was a picture of the fireplace being used by the tenant as part of the tenant’s advertisement for the selling of their firewood. The picture taken from the Facebook advertisement showed the fire in full blaze in the fireplace.

The landlord said that she had also offered a heater but the tenant had declined it saying that they had one.

I find that the landlord’s evidence was more credible. I cannot fault the landlord for not sweeping the fireplace and the chimney when the tenant did not allow the landlord to do so.

I dismiss this claim. Ceiling insulation standard

The tenant claimed that the ceiling insulation did not meet the standard as the ceiling insulation had broken down to such an extent that the R-value would no longer be met.

The tenant said that the insulation was over 30 years old, that there were vermin nests and faeces, insect frass and cockroach egg cases.

The tenant had purchased an air purifier for $117.00 and deep cleaned the bedroom sealing off all ducting. The tenant purchased takeaway food and used an electric heater with the windows open and resulting in an electricity bill that had increased by $200.00 that month. 4328229, 430900417

The tenant said that that a test confirmed presence of organic fibers through the living areas, HRV vents and ducting. The tenant estimated 2 days of lost employment as a result.

The landlord argued to the best of her knowledge that the insulation was compliant. She had measured it herself before the tenancy.

The tenant argued that the dust had been falling from the ceiling and that photos showed the insulation in its degraded insulation.

The landlord was unable to present evidence of what the ceiling insulation was like due to the tenant having removed it before the end of the tenancy.

Although finely balanced, I do not find that the tenant has proved that the ceiling insulation did not meet the minimum R-value of 1.9 before the ceiling insulation had been removed.

This was something that the tenant could have easily tested before having it removed.

The organic fibers throughout the living areas could have been the sawdust from the wood fire being cut in the garage.

I do not find this claim has been proven. Ventilation standard

The tenant claimed that the premises did not meet the HHS for ventilation standard.

As this premises was not subject to the HHS standard, I dismiss this claim. Draught stopping

The tenant that the fireplace was left open and had gaps that allowed for draughts.

The fireplace issue had been discussed above.

As HHS draught stopping standard did not apply, I dismiss this claim. Moisture ingress and drainage

The tenant claimed that not all gutters were connected to a downpipe and not all gutters and downpipes were of sufficient sizes to not overflow during normal rainfall. Further, the gutters did not have sufficient fall for water to flow into the connected downpipe. 4328229, 430900418

The tenant said that the downpipe position was such that it was not going into the stormwater but it was going straight to the ground and next to the retaining wall.

The landlord said that the premises did not flood even during the serious Auckland weather events despite the next door having been flooded. The water had drained away without issue.

The landlord said that no moisture ingress and drainage issues had been raised by the tenant.

The issue regarding the gutter cleaning had been addressed earlier.

In addition to the HHS not being applicable, I do not find that the claims had been proven. Compliance with contaminants regulations

The tenant claimed that the premises did not have compliant ventilation to extract the organic fibers found in the degraded ceiling insulation that have been blown into the living areas.

The tenant said that this was a direct result of the HRV filter not being changed within the recommended time frames.

As above, I am not satisfied that the organic fibers referred to by the tenant were the broken-down insulation from the ceiling.

The tenant said that after they were evicted, they had spent 3 months in emergency housing and a further 3 months at a transitional facility. They had to store in a garage their double bed (valued at $800.00), corner couch (valued at $1,500.00) and a lazy boy chair (value at $750.00) which had become contaminated with dust from the premises and had to be thrown away.

The tenant said that a fridge valued at $900.00 also had to be disposed of due to the cockroach contamination arising after the HRV was finally turned. The tenant also said that the premises required a deep clean to try to remove dust which was worth $1,500.00.

I dismiss the claims as the tenant has not proven that the items had been damaged due to any of landlord’s fault. The tenant has not proven any link between cockroach infestation and the HRV.

The tenant further referred to Housing Improvement Regulations 1947, Building Act 2004, Health Act 1956 and WorkSafe regulations as having been breached. These were in relation to the gutters that had already been discussed and the ceiling insulation. 4328229, 430900419

I am not satisfied that the dust particles inside the premises were from ceiling insulation. They could equally have been the sawdust from the wood cutting business the tenants ran. Order seeking for the premises to be declared as an unlawful residential premises

The tenant applied for the Tribunal to declare the premises as an unlawful residential premises and sought $9,800.00 as compensation.

I am not satisfied that the tenant has proven that the premise was an unlawful residential premises.

I declined to make a declaration that the premises was an unlawful residential premises and accordingly I do not award any compensation. Retaliatory notice

The tenant sought a declaration that the landlord’s termination notice was retaliatory.

However, the tenant was initially given a conditional termination when the rent was in arrears and the rent arrears continued and the tenancy was terminated.

The tenant attributed the non-payment of rent to the landlord not signing a “preferred supplier form” for the Ministry of Social Development. There was no legal obligation on the landlord to sign the form. I do not find that the landlord had refused to sign in retaliation. Contracting to contravene or evade the provisions of the RTA

The tenant claimed that the landlord had mislead the tenants to provide quotes to claim against the previous tenant at the Tenancy Tribunal. The tenant said that was in breach of section 137(2) RTA.

If the landlord sought to get quotes for cleaning via the tenant and the tenant was in a position to provide quotes for another Tribunal case, that is not something that is illegal per se.

I do not find that arrangement was something in breach of section 137(2) RTA. Compensation

The tenant claimed compensation for the premises being contaminated and unfit to live in.

Having heard the evidence, I find that the tenants genuinely believed that they were breathing in broken-down ceiling insulation. If the tenants had not engaged 4328229, 430900420 in a wood cutting business and there were still organic fibres found inside the premises, their case may have been stronger.

In relation to any shortcomings of the premises itself, if the tenant had not been quick to offer to do the work themselves or if they had raised the issues to the landlord in writing, the tenant’s claims for compensation may have been successful.

However, I do not find that the tenants have proven the claims to the required standard.

This claim is dismissed. Filing fee reimbursement

I do not find that the landlord has wholly or substantially succeeded despite the amount awarded in the landlord’s favour.

I do not order any reimbursement of the filing fee. Name suppression

I do not find that there is justification for suppression of this order. Therefore, no suppression applies to the public of this order.

Claims and awards in Tenancy Tribunal application 4328229 — net $8,242.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 06/12/2021	$3,400.00	Rent arrears to 06/12/2021
Water rates	$106.82	Water rates
Lock/key replacement	$200.00	Lock/key replacement
Cleaning: Exterior house wash	$150.00	Cleaning: Exterior house wash
Cleaning: Garage cleaning	$63.58	Cleaning: Garage cleaning
Cleaning: Lounge	$50.00	Cleaning: Lounge
Cleaning: Kitchen and dining	$75.00	Cleaning: Kitchen and dining
Cleaning: Hall	$25.00	Cleaning: Hall
Cleaning: Bedrooms	$100.00	Cleaning: Bedrooms
Cleaning: Toilet	$50.00	Cleaning: Toilet
Cleaning: Bathroom	$100.00	Cleaning: Bathroom
Cleaning: Porch	$50.00	Cleaning: Porch
Cleaning: Disinfect paths and garage floor	$37.98	Cleaning: Disinfect paths and garage floor
Rubbish removal	$203.38	Rubbish removal
Lawns and Garden work	$265.98	Lawns and Garden work
Replace furnishings: Sink plugs x 3	$55.83	Replace furnishings: Sink plugs x 3
Replace furnishings: Smoke detector	$19.00	Replace furnishings: Smoke detector
__________________________________________________________________________________ 4328229, 43090042 Repairs: Missing do	$28.35	__________________________________________________________________________________ 4328229, 43090042 Repairs: Missing do
Repairs: Bath tub	$550.00	Repairs: Bath tub
Repairs: Bathroom floors	$403.59	Repairs: Bathroom floors
Repairs: Garage door	$550.00	Repairs: Garage door
Repairs: Garage cladding	$550.00	Repairs: Garage cladding
Meth test kit	$43.50	Meth test kit
Window catch	$14.40	Window catch
Repairs: Lounge wall hole	$100.00	Repairs: Lounge wall hole
Replace furnishings: Oven	$550.00	Replace furnishings: Oven
Exemplary damages: removing smoke alarm	$500.00	removing smoke alarm
Net award	$8,242.41
Total payable by Tenant to Landlord	$8,242.41