What was Tenancy Tribunal case 4345822 about?

The tribunal order states: The applications for exemplary damages are dismissed.

How much money was awarded in case 4345822?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4345822?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4345822?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9583074-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4345822 about?

The tribunal order states: The applications for exemplary damages are dismissed.

How much money was awarded in case 4345822?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4345822?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4345822?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9583074-Tribunal_Order_Redacted.pdf.

172A Stafford Drive, Ruby Bay, Mapua 7005, Upper Flat Tenancy Tribunal Case 4345822 — Mould & damp

Order

The applications for exemplary damages are dismissed.

Reasons

Both parties attended the hearing.
This was a partial re-hearing following a hearing and decision of the Tribunal dated 21 March 2023.
The original decision declined to consider the applications for exemplary damages on the basis of the adjudicator’s interpretation of the Law Reform Act 1936. In his re-hearing decision, the adjudicator accepted his original interpretation was incorrect, and exemplary damages were available, if appropriate. A partial re-hearing was granted on that basis.
My decision is limited to those matters set out at order 1.a-g of the order dated 8 May 2023 (“the May order”). Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. Written tenancy agreement (May order 1.a-d)
[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
I have considered the correspondence that established the tenancy, and the agreement reached, together with the requirements for the contents of a tenancy agreement as set out in section 13A(1) of the Act. I consider that the tenancy agreement, made up of an exchange of emails, culminating in the email from the landlord dated 21 February 2022 meets the requirements of s13A(1). While it is not in the traditional form, it contains all the necessary information.
The tenant’s application is dismissed.
For completeness, there is no evidence that the landlord has provided false or misleading information in the tenancy agreement or associated documents. As will be clear below, the insurance information was not provided in accordance with the requirements of the Act, but no false or misleading information was provided.
The tenant’s application in this respect is also dismissed. Failure to provide Healthy Homes documents (May order 1.f)
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Further, a landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
The landlord confirmed, by email on 10 June 2022, that the premises was compliant with the healthy homes standards, and set out the details of the insulation installed, including details of the work done to ensure compliance. There was no further request for information.
This is not full compliance with the requirements of the Act, in that the landlord should have provided the reports referred to and the healthy homes certificates should have been provided.
Accordingly, the landlord has committed an unlawful act.
That said, I do not consider that the landlord acted intentionally. By providing the information he did on 10 June 2022, I consider the landlord intended to comply with the requirements of the Act, but more importantly to answer the tenant’s concerns.
Accordingly, I do not consider that an award of exemplary damages is appropriate.
In making this determination, I do not overlook the tenant’s concerns with feeling chilled, or with her impressions of dampness in the premises. However, the failure to provide formal documentation in addition to the material the landlord did provide, is unlikely to have changed her perceptions. This portion of the application relates to the documentation rather than actual compliance.
The tenant’s application for exemplary damages is dismissed. Failure to provide insurance details (May order 1.g)
[The tenant/s] claims the landlord has not provided a copy of the insurance policy for the premises.
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
The landlord accepts that the tenant asked for a copy of the insurance statement and that the statement was not provided. I find [The landlord/s]as committed an unlawful act.
By way of explanation, the landlord says that when the tenant requested the insurance details they sought advice from tenancy services on the extent of the obligation to disclose, because the insurance relating to the tenanted premises was part of the insurance policy for the entire property – including other dwellings and buildings. The landlord’s evidence is that tenancy services told them they should advise the tenant in writing of the details of the policy, as it related to the tenant premises, but that they did not have to provide the policies themselves. They followed that advise.
Having attended the initial hearing and received the decision, the landlord accepts that advice was wrong.
I consider that the landlord was entitled to rely on the advice given by tenancy services, at the time it was given. Accordingly, I do not consider that the landlord breached the act intentionally.
While the tenant did not have the full details of the insurance policy, she was informed of the details of it, and was largely aware of the potential liability for damage to the property. Accordingly, the effect of the landlord’s breach is relatively minor.
I do not consider that an award of exemplary damages is appropriate in these circumstances. Failure to maintain (May order 1.e)
[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
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 (1)(A) and Schedule 1A RTA.
The landlord contends that no insulation is required in the subfloor as there is a habitable space below. This was considered by the Tribunal in the order dated 21 March 2023, and the adjudicator did not accept that the commercial units below the premises met the definition of habitable space set out in the regulations. I agree with his analysis. Accordingly, I consider the failure to insulate is an unlawful act.
That said, again, I consider the landlord did not act intentionally. There was genuine confusion as to whether the subfloor area was required to be insulated, and the landlord believed it was exempt.
It would, of course, have been preferable for the landlord to provide confirmation of that advice of exemption to the Tribunal, and to the tenant.
Further, I note that the Tribunal awarded compensation to the tenant for the failure to insulate. I consider that this award addresses the tenant’s interests adequately.
In the absence of an intentional breach of the Act, I do not consider that the stigma of an award of exemplary damages is required in this case.
The tenant’s application is dismissed.
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
A 14-day notice to remedy was issues on 12 June 2022, and the tenant alleges the landlord failed to repair the following in a timely manner: a. Window latches. b. Water blasting the outside stairs. c. Light-fittings outside. d. Floor tiles in the kitchen. e. Replacement curtains. f. Replacement oven knob. g. Noise from the neighbour’s chimney.
The landlord’s position is that all repairs were completed as soon as possible, and following information was provided: a. The window latches were replaced on 14 or 15 June 2022. b. The outside stairs were water blasted at the end of June. c. The light fittings were replaced and repairs on 14 June 2022. d. The floor tiles did not present a health and safety concern (as confirmed by the Council, who also confirmed there was no leak into the kitchen below). The tiles repairs were booked in July 2022, but there was not availability of tradespeople until January 2023, when the repairs were carried out. e. The Curtains were replaced in June 2022. The Tribunal awarded compensation for the costs incurred by the tenant in respect of this. f. The replacement oven knob was ordered in June, bit not delivered until august 2022. The knob was for the warmer drawer, and when assessed, there were no operational issues with the oven. g. In relation to the noise from the chimney, this was looked at, but there was no indication that the noise was increased significantly, or that anything could be done. The tenant reported this issue to the Council, who confirmed that in a mixed residential/commercial zoned area, there were different noise ratings and this chimney did not exceed those ratings. The landlord also noted that the chimney was not part of the tenanted premises.
I consider that the landlord responded promptly to the tenant’s requests for repairs and the majority of the claims were actioned and completed within days of the 14-day notice to remedy. The matters which were delayed were delayed by factors outside the landlord’s control.
Accordingly, I do not consider the landlord has committed an unlawful act.
In relation to the chimney, I agree with the comments made by the Tribunal at paragraph 27 of the March order, but also note that the chimney does not form part of the tenanted premises, rather it is part of the commercial unit below. That unit is not covered by the Act, given it is not a residential tenancy.
The tenant’s application is dismissed. Suppression
The Tribunal granted suppression in the original order, and I see no reason to depart from that position.

Tenancy Tribunal case 4345822 — Mould & damp at 172A Stafford Drive, Ruby Bay, Mapua 7005, Upper Flat

At a glance

Tenancy Tribunal case 4345822 — Mould & damp at 172A Stafford Drive, Ruby Bay, Mapua 7005, Upper Flat

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions