Published tribunal order
Tenancy Tribunal case 4331120 — Healthy homes at ORDER
Decided 26 Sept 2023 · Published 26 Sept 2023 · Application 4331120
- Healthy homes
Party names are redacted in the official published order.
Order
- There has been an application for suppression in this case and the Tribunal orders suppression of the tenants’ names and identifying details.
- By agreement, the fixed-term tenancy of at is ended as at Friday 1 July 2022.
- must pay immediately, calculated as shown in table below:
- () to [The tenant/s].
Reasons
- All parties attended the hearing. The tenants attended in person as did representatives from both property management companies. The owner, Richard Chiu, was also present via teleconference.
- At the commencement of the tenancy, the property managers were LJ Hooker Limited (Central West Property Management). From around late March/early April the property managers were Rentex Limited.
- The tenants have made a number of claims. These included: •An application to end the fixed term tenancy early •A claim that the tenancy agreement was unlawful •Compensation for breaches of the Healthy Homes Standards •Compensation for power bills paid to [The energy company] •Compensation for breach of privacy •Compensation and exemplary damages relating to the landlord’s obligations under section 45 of the Residential Tenancies Act (“the Act”)
- This application was complex and messy.
- For the sake of brevity, I have not referred to all the evidence presented by the parties in this decision. However, they can be assured that all relevant evidence has been considered.
- Some of the complications in this case relate to the fact that there have been two separate property management companies managing the property during the relatively short duration of the tenancy (as noted above). Both were represented at the hearing.
- The property owner also sought to put numerous issues before the Tribunal that did not relate to the tenant’s claims, but rather related to a dispute he has with LJ Hooker (Central West Property Management).
- Consequently, a large tranche of documents sent by Mr Chiu has now been reviewed. Many of the documents provided relate to that ongoing dispute.
- I record that I have no jurisdiction to determine those issues, nor do they form part of the application before me. To the extent that documents have been submitted that relate to that dispute, I have disregarded them. First Two Claims
- The first two claims can be disposed of relatively quickly.
- The first (an application to end the fixed term) has been agreed to by the landlord. I therefore confirm that the tenancy is terminated as at 1 July 2022.
- The second (that the property management company had no authority and therefore the tenancy was unlawful) cannot succeed. The tenancy agreement was valid as between the property manager (as agent for the landlord) and the tenant. The property management company does not have to disclose the name of the owner, as they are operating as the owner’s agent.
- That leaves the remaining claims to be determined. Power bills
- The tenants have undoubtedly had a difficult time with [The power company]. I accept their evidence that due to unpaid bills (presumably by the previous tenant) [The power company] threatened to disconnect their power even before they moved in. The tenants said they had no choice of provider because [The power company] is engaged to provide electricity services to the whole building.
- This was entirely unsatisfactory. [The power company] had an obligation to recover debt from the person with whom they were in a contractual relationship, not threaten these tenants with disconnection. Consequently, the tenants have made payment for a bill that was not their liability in order to avoid living in a property without electricity.
- However, this is not a claim that can be brought against the landlord. The claim is properly against [The power company]. I do not have jurisdiction to resolve that dispute, which, if it cannot be resolved between the parties, should be dealt with in the Disputes Tribunal.
- This aspect of the claim is therefore dismissed. Water Bills and Privacy Issues
- The tenants say that the advertisement for the tenancy included the words “cold water included”.
- They also point to a clause in the tenancy agreement which states that cold water is included in the rent.
- They say that at some point they received an email stating that they had unpaid water bills and must pay to avoid their water being disconnected.
- Upon further enquiry, it appears that the previous property manager (no longer working for Central West Property Ltd) signed the tenants up to a contract with [The water company] to provide water. The tenants say that the property manager did this without their knowledge or consent.
- The actions of the property manager appear to have been in response to an email to him from [The water company] advising him to sign the tenants up for cold water supply or risk water disconnection from the apartment.
- While I accept that the property manager had good intentions, in doing this in the tenant’s names the property manager purported to form a contract when he had no authority to do so.
- Moreover, the property manager provided the tenants’ personal information and passport details to [The water company].
- First, addressing the issue of water bills – Central West Property accept that it is possible (although they are uncertain) that the apartment was advertised as having cold water included. For that reason, they accept that a reimbursement to the tenants in the amount of $150.00 is warranted.
- I make that order accordingly.
- In respect of the privacy issue – I find that this amounts to a breach of quiet enjoyment. Section 38(2) of the Act provides that: The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
- It was quite unwarranted for the property manager to sign the tenants up to a contract, using their personal information. I accept that there was no bad faith on the part of the property manager, however that does not excuse what occurred.
- I award $200.00 for breach of quiet enjoyment.
- In terms of breaches of the Privacy Act, while it appears on the face of it to be a breach, I have no jurisdiction to make orders or declarations under that legislation. If there are further issues the tenants must raise that in the appropriate forum. Failure to Provide Insulation Statement
- The Tenants say that no insulation statement was included with their Tenancy Agreement, which is a breach of section 13A of the Act.
- This section requires that the landlord provide a written statement regarding insulation compliance. Section 13A(1A) requires that: The landlord must include in the tenancy agreement a statement, made and signed by the landlord, that provides the following information to the tenant (subject to subsections (1B) and (1C)): a. whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises: b. details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises:
- However, the landlord can avoid providing the information in section 13A(1A) if they are unable to do so, so long as the statement instead describes what information they have been unable to obtain, and explains why it has not been obtained, and confirms that all reasonable efforts have been made to obtain that information – section 13A(1B) of the Act.
- The landlord must also include a statement that confirms that on and after the commencement of the tenancy the landlord will comply with the HHS, refer section 13A(1CA).
- The requirement to provide an insulation statement has been in existence since 1 July 2016.
- In this case, I have sighted the signed Tenancy Agreement. Although the landlord has signed the statement of intent as per section 13A (1CA) there is no information under section 13A(1A) or (1B).
- I therefore find that there has been a breach.
- The Act provides that this is an infringement offence with the maximum infringement being $2000 in a situation where the landlord has 6 or more properties. This landlord I am advised owns over 20 properties.
- I therefore award $200 to the tenants. Breaches of Healthy Homes Standards
- The tenants say that the landlord has failed to comply with the Healthy Homes Standards – in particular ventilation and heating standards.
- As this tenancy commenced on 14 January 2022, the compliance date for HHS was 14 April 2022.
- In relation to the ventilation standard, the tenants say that the rangehood in the kitchen was faulty when they moved in, and the landlord failed to remedy this issue. They say this amounts to a breach of the ventilation standard.
- In relation to the heating standard, the tenants say that there was never any heating provided in the property.
- A Healthy Homes Assessment report dated 15 January 2022 from [The assessment company] was provided by the landlord at the hearing.
- That report confirms that the property was compliant with the ventilation standard. However, it also confirms that the property was non-compliant with the heating standard.
- I therefore find there was no breach in terms of the ventilation standard. Whether or not the rangehood had repair and maintenance issues later on is a matter that will be discussed below, but it is not a breach of the HHS.
- In terms of heating, I accept that tenant’s claim that the property was in breach of this standard.
- 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 Residential Tenancies Act 1986.
- The landlord was aware of the issue and indeed the report commissioned by him shows this. I find that he has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- As noted above, the owner of this property owns over 20 rental properties. He is in the business of renting for commercial gain. He must be assumed to be well aware of his legal obligations. I am satisfied that the act was intentional.
- The effect of this unlawful act was obviously to deprive the tenants of any heating in their apartment. It is in the interests of tenants but also in the public interest that landlords are required to comply with their legal obligations.
- I do not have any information as to whether this landlord has previously breached his obligations, so on this occasion I award an amount towards the lower end of the scale. I award $1000.00 in exemplary damages to the tenants. Other breaches of section 45
- The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must •provide the premises in a reasonable state of cleanliness •provide and maintain the premises in a reasonable state of repair •comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 •comply with any relevant enactment in relation to buildings, health and safety
- The tenants say that when they first moved into the property it was not clean. They also point to a number of maintenance and repair issues that were not addressed and seek compensation for that.
- In particular, they say the fridge required repair because it made an unpleasant sound. They also say that later on the rangehood was faulty and that there were issues with broken lights.
- There were extensive emails between the parties regarding these issues, and I do not propose to traverse all the evidence provided. In short however, I make the following findings.
- The premises were reasonably clean and tidy. The apartment may not have been perfect nor met the tenant’s high standards, but the law only requires that it be reasonable.
- There was a good faith effort to repair the fridge by Central West Property Ltd. I do not accept that the tenant can dictate which repairperson should be used by the landlord. The landlord has done their best in the circumstances. There is no indication the fridge was not working as intended (i.e. to refrigerate food).
- Rentex had taken over when dealing with the rangehood and lights. The tenants served a 14-day notice to repair these items.
- It is clear that Rentex attempted to get the owner to deal with these issues; however, the owner apparently was distracted by his dispute with Central West Property Ltd and appeared fixated on Central West Property Ltd bearing responsibility for this issue rather than addressing his own obligations to the tenants.
- The upshot it that these items were not fixed. This is a breach of the landlord’s obligation to repair and maintain the premises.
- I award the tenants $500 for loss of amenity in being unable to use the rangehood. It seems that this was an issue from the outset and despite efforts by the agent was not remedied. Concluding Remarks
- I record that neither property management company has acted in bad faith. As agents, they were acting on behalf of the principal. It was the principal, Mr Chiu, who on multiple occasions declined to follow the advice of both companies.
- For that reason, I have added him as a party to this claim and included him in orders made above. He was present at the hearing and had the opportunity to be heard. Despite receiving the advice of his agents as to his legal obligations, the owner has elected not to fulfil his obligations as required by law. Suppression
- Section 95A of the RTA provides that on the application of a party that has been wholly or substantially successful in proceedings the tribunal must order that the name or identifying particulars not be published, unless the tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
- Because have mostly succeeded with the claim I have reimbursed the filing fee.
- Finally, I apologise to the parties for the delay in issuing this decision. J R Smith 5 September 2022