Published tribunal order
Tenancy Tribunal case 4371981 — Property damage at 92 Holloway Road, Aro Valley, Wellington 6021
Decided 24 Nov 2023 · Published 24 Nov 2023 · Application 4371981
- Property damage
- Exemplary damages
- Smoke alarms
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ name and identifying details.
- [The tenant/s] to pay Theresa Thomas $255.67, calculated as shown in table below.
- The Bond Centre is to pay the bond of $3,500 ([Bond number suppressed]) to Theresa Thomas immediately.
- All other claims are dismissed.
Reasons
- Both parties attended the two hearings.
- An initial hearing was held on 19 October 2022 during which evidence was taken on the tenants’ applications for reduction of their fixed term tenancy and claim for compensation on the basis of a breach of the Healthy Homes Standards (HHS). A decision was issued on 21 October ending the fixed term tenancy early and adjourning the landlord’s applications to the second hearing on 16 November. This decision should be read in conjunction with the decision of 21 October.
- I consider each of the claims as follows bearing in mind the standard of proof required as discussed in the previous decision. Given the appreciable amount of evidence filed, not all of it will be referred to in this decision, however the parties can be assured it has been considered.
- Finally, I commend the parties on the time and effort they put into presenting their cases which were thorough and clear. Landlord’s claims
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA). Cleaning
- Ms Thomas claims the tenants did not leave the premises reasonably clean and tidy, nor did they remove all of their rubbish. She says they had not cleaned the range hood filters, under the stove or furniture, there was rubbish outside, the furniture had marks on it, there was dirt on skirtings, marks on rugs, the walls had not been wiped and the lightshades were unclean. She says it is understandable they could not do a thorough job as they had earlier disconnected the electricity.
- She claims compensation for the professional cleaner she employed who took
- 5 hours and cost $330.99, and two hours at $45 per hour for her time to clean the outside areas. The professional clean was of two bedrooms (not the third), included skirtings, ceilings, etc; essentially it was a standard move out clean. Ms Thomas provided a video of the property from 31 October as she found it which showed dirt in sink, an unclean bin, cobwebs, marks on rugs and furniture, dust and an unclean washing machine among other.
- [Tenant 4] says his parents came and helped him clean and they did a thorough job including cleaning the rangehood. He says they wiped the walls and windowsills and he provided a video dated 15 October demonstrating how they left the premise. The tenants therefore dispute the claim that they failed to leave the premise reasonably clean and tidy.
- The tenants agree with the claim for compensation for cleaning the outside as they had issues with rubbish collection. They disagree with the amount as it is a professional’s hourly rate, and the landlord conducted the work.
- The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also a tenant, generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
- Having considered the evidence and bearing in mind the statutory threshold, I find that the tenants did not leave the premise reasonably clean and tidy, but it was not far off. They had done a thorough job but had left some areas and there was some time between the clean on 15 October and vacate date on 28 October. It is reasonable for the landlord to claim compensation for having to clean bluetack from walls, clean the rubbish bin, wipe prominent marks from the walls and clean the sink, however the skirtings, rangehood, ceilings etc are not tenant responsibilities pursuant to the RTA. I also note that properties rented out fully furnished to a group of young people must anticipate a certain amount of wear and tear which will of course be compensated for in the rent charged.
- Accordingly, I find an award of $100 compensation for cleaning reasonable in the circumstances.
- I do not accept the claim for $90 for sweeping the path as that was a professional’s rate and Ms Thomas, who conducted the work is not a professional. I award $40 which is considered more reasonable in the circumstances.
- Ms Thomas also claims $100 compensation for having to have the rug in the lounge professionally cleaned due to stains. [Tenant 3] says he cleaned this thoroughly including using a rug doctor and taking it to the laundromat. Having considered the evidence I am satisfied that the remaining stains are fair wear and tear and as such decline the claim. Oven
- Ms Thomas says that when she attended the property the oven had been dismantled and part of it was on the bench. She seeks compensation of $212 being the quote she has received to have it professionally reinstated.
- [Tenant 4] says his parents cleaned the oven and put it back together before they left. His video shows the oven clean and intact.
- The video evidence therefore shows the oven intact on 15 October but partially dismantled on 31 October. Both parties are adamant in their evidence.
- The tenants were responsible for the property, despite not living there, until 28 October. As there are more days between 15 and 28 October than there are between 28 and 31 October, I find it more likely than not that the oven was dismantled in the earlier, longer period. To what end I do not know however I have to make a finding on the evidence I have before me. I also note that in the pictures on the 15 th is a cookbook that was at some point later removed by the tenants. Accordingly, as it is more likely than not that the oven now needs to be reinstated, I award compensation to do so.
- The amount claimed is a professional’s cost including the screws which Ms Thomas says were missing. I do not find it established that a professional is required to reinstate the oven particularly as clearly a non-professional dismantled it. The screws will cost $40, and it will take some time to reinstate, therefore, I consider $60 a reasonable amount to award. Rubbish removal
- Ms Thomas is claiming $80 compensation for having to dispose of some items the tenants left behind and the items they have damaged that she has to replace. On the evidence I consider this claim reasonable, particularly as it includes items that have to be replaced, and order as sought.
- Ms Thomas is also seeking $20 compensation for having to extract plastics from the compost bin. She is certain there were no plastics in at the commencement of the tenancy. The tenants’ evidence is that they did not use the compost bin so do not know how the plastics got in there.
- Applying the balance of probabilities, I find it more likely than not that plastic did get into the bin during the tenancy which is the period the tenants were responsible for it, especially as Ms Thomas saw it at an inspection with the lid off. Accordingly, I award the compensation as sought. Keys
- [Tenant 4] did not return his key. As Ms Thomas did not have all keys returned at the end of the tenancy, she changed the locks as she was entitled to do. Given the tenants have not complied with their obligation pursuant to s40(1)(e)(iv) of the RTA, I consider it reasonable they reimburse Ms Thomas this cost she was put to as a result of their actions. Chattels
- Ms Thomas, prior to the tenancy ending, claimed compensation for the tenants having removed her belongings from the property and failing to return them upon her requests. The house was provided fully furnished and the tenants wished to use some of their own belongings so removed some items that came with the home to their family homes for storage. As discussed at the hearing, while the tenancy was continuing, the tenants had been provided with the exclusive use of the items. Their obligation with respect to them was not to damage them 1 and at the end of the tenancy ensure they were returned with the premise. 2 Therefore compensation is only awarded for items that remained unreturned at the end of the tenancy. I detail them separately as follows. Mattress toppers
- Ms Thomas claims compensation for having to replace two mattress toppers. One had stains on it and the other cut marks. The tenants say the cut marks happened during the burglary 3 as they came back to find the bed with a knife sticking out of it, therefore they do not accept liability. [Tenant 4] says his topper got stained in normal use, presumably by sweat. He says he took it to a drycleaner but they could not get the stains out. His submission therefore is that it was stained by fair wear and tear. 1 S40(2)(a) RTA 2 S40(1)(e)(v) RTA 3 Refer paragraphs 26-32, 21 October 2022 decision
- These mattress toppers were new at the commencement of the tenancy, therefore when the tenants vacated were approximately 10 months old. The estimated life span of bedding in New Zealand residential tenancies is three years. Ms Thomas had provided mattress protectors which should have enabled these toppers to last at least their life span.
- I find that the knife marks were more likely than not caused in the burglary. As discussed below tenants are not liable for damage caused by somebody on the premises without their permission, unless their presence there is because of a careless act of the tenants’ 4 . Here the tenants accept that they mistakenly left the house open 5 which means that it was their careless act that enabled the intruder to access the premise. Accordingly, they are liable for any damage the intruder caused, including the damage to the mattress topper.
- I am also satisfied that the stains on [Tenant 4]’s topper would not have been as substantial as they were had the protector and sheets been used as intended. Accordingly, I also find that careless damage which makes the tenants liable.
- However, having viewed the videos of the damage, I am not satisfied that it is proven that they need to be replaced as Ms Thomas has claimed. Pursuant to s49 of the RTA landlords are required to limit the loss suffered pursuant to such breaches which would be cleaning instead of replacement. I also find that they can still be used despite the small slashes.
- Accordingly, I award $100 compensation to account for accelerated depreciation 6 for each topper which I consider reasonable in the circumstances. Mattress protectors & encasements
- Ms Thomas’ evidence is that the tenants have removed two mattress protectors and damaged one and removed one mattress encasement protector and damaged another. The tenants disagree saying they removed none of the bedding and in fact had to provide some of their own. They consider the staining fair wear and tear.
- Having weighed up the evidence I am satisfied, given how detailed Ms Thomas’ inventory was at the commencement and end of the tenancy, that it is more likely than not that the tenants have ended up removing two protectors and one encasement rather than leaving them at the premise. Accordingly, I award compensation for Ms Thomas having to replace them, however have reduced the amount sought by one third to account for depreciation. This is because in determining compensation payable, depreciation must be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to 4 S49B RTA 5 Paragraph 26, 21 October 2022 decision 6 Accelerated depreciation is the concept that an item has aged more quickly than reasonably anticipated, however is still fit for purpose. wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
- I agree with the tenants’ submissions that the stains are fair wear and tear and accordingly decline to award compensation for the landlord replacing one mattress protector and one encasement. USB plug
- Ms Thomas claims the loss of a USB plug. The tenants are not aware of it. I am satisfied that the evidence has proven it was provided with the tenancy and is no longer at the premise; therefore the tenants are liable for the replacement. Candle holder
- There was a candle holder missing that the landlord claims compensation of $4.99 for. The tenants accept this cost. I deduct the amount claimed by approximately 20% to account for depreciation. Cutlery
- The landlord claims compensation for a number of cutleries missing from the property. The tenants dispute that they took any however agree it was confusing when they were leaving to decipher which were theirs and which were the landlords.
- I am satisfied that the photos establish that some were missing at the end of the tenancy, although it is impossible to tell exactly what. Cutlery has a three-year life span in residential tenancies which is about the age of this cutlery. I do accept however that they were in reasonable condition at the start of the tenancy and had life left in them. I award $20 compensation which I consider reasonable in the circumstances.
- There was also a cutlery divider that Ms Thomas says was not returned. [Tenant 4]’s photos show it there on 15 October, but Ms Thomas’ video does not show it. As the tenants had control of the premise until 28 October, I find it more likely than not that it was not in place at the end of the tenancy and accordingly find the tenants liable for the replacement cost. However again this item was more likely than not at the end of its lifespan. Therefore, I award $5 compensation to account for depreciation and reasonableness. Light bulbs
- Ms Thomas claims $84.47 compensation for having to replace a number of lightbulbs. The tenants accept this cost. Soap dish
- There is a soap dish that Ms Thomas says is missing which the tenants are unsure about. I find it established that it was present at the commencement and not at the end therefore award $7 compensation which is considered reasonable bearing in mind depreciation. Plants
- Ms Thomas seeks compensation for plants that were removed from their pots. The tenants say they died during the tenancy. I do not accept that a tenant is responsible, in lieu of specific agreement, for house plants left in a tenancy. Accordingly, this claim is dismissed. Oven tray
- Ms Thomas seeks compensation for having to replace a missing oven tray. The tenants are sure it was left at the property, Ms Thomas is not. As above, I find Ms Thomas’ evidence more credible and award $10 compensation which takes into account depreciation. Mats
- A toilet mat and shower mat were allegedly not returned, and Ms Thomas seeks $35 compensation for having to replace them. [Tenant 3] thought he had returned them but accepts he may have been mistaken. These were new at the commencement of the tenancy and I am satisfied it is proven they were not returned. Accordingly, I award $23 compensation which accounts for 1/3 depreciation given they were approximately one year old which is a third of the way through their expected lifespan. Multiplugs
- The tenants have agreed to reimburse Ms Thomas for two multiplugs. Ms Thomas seeks $40 being $20 each. The tenants have provided evidence of the same multiplugs being available for $3.50 each. I accept this amount as it is considered reasonable and accounts for depreciation. Dustpan & brush
- Ms Thomas says two dustpan and brushes were provided with the tenancy and only one was returned. The tenants say they returned both. Irrespective of the positions I find that even if it hadn’t been returned it had exceeded its expected lifespan and therefore find it unreasonable to award any compensation. Such items are notoriously flimsy. Accordingly, this claim is dismissed. Mirror
- Ms Thomas claims $20 compensation to repair a mirror which the backing has come off from. [Tenant 3] says this was likely kicked by the robbers from where it had been stored on the floor. He also says it would not cost $20 to repair.
- For the reasons discussed above I find this careless damage and accordingly the tenants are liable. I also find $20 reasonable in light of the time it will take to repair and award as sought. The tenants had time to repair it prior to vacating but as they chose not to, Ms Thomas is entitled to be reimbursed for her time in having to do so. Bed
- Ms Thomas seeks compensation for having to replace the bed that was in [Tenant 1]’s room because when she moved it off site, she lost the screws and it now cannot be reassembled. Ms Thomas has tried a number of different stores to obtain the screws, but they are specific to the bed and appear to be irreplaceable. Accordingly, she seeks reimbursement of the cost of having to replace the bed given it is no longer usable.
- [Tenant 1] accepts liability for this loss but challenges the amount sought. Ms Thomas says she cannot find an exact replica and has provided prices for similar items ranging from $429 to $800. The bed was approximately halfway through its expected life span of 10 years.
- I accept the evidence that without the specific screws the bed is no longer usable. I appreciate that the tenants attempted to replace the screws but were not able to find the correct ones. Accordingly, having considered the evidence, I award $250 compensation which I find reasonable in the circumstances and accounts for depreciation as the bed was 4.5 years old. Muffin tray
- Ms Thomas has submitted evidence that establishes that there were 2 muffin trays provided at the commencement of the tenancy but only one was returned. The tenants say they know nothing about muffin trays as they did not use them. The one remaining was dirty.
- I am satisfied that the evidence has established that one muffin tray was missing however award less than was sought on the basis that the claim was unduly high for such an item. Miscellaneous items
- As directed at the hearing, the day after the hearing the tenants returned the coat hangers, the kitchen basket, the basket-stool and cookbook. Therefore, the claims for compensation relating to these items are dismissed.
- Ms Thomas claims $35 compensation for a missing part of the vacuum cleaner, a pack of curtain track runners and a wall hook. The tenants say the hook was in situ when they vacated, and they are unaware of the other items. Given the size and miscellaneous nature of these items I find it unreasonable to expect they will be in place at the end of such a tenancy and decline to award compensation.
- The tenants accept the $6.98 sought for replacement of the packs of batteries that were missing at the end of the tenancy.
Are the tenants responsible for the damage to the premises?
- Ms Thomas seeks compensation for damage she says she has found at the premise at the end of the tenancy. The RTA states that 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 careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market 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 (s49B cap).
- Section 49B(1) RTA provides that a tenant is not excused from liability or obligation by section 49A(1) if, and to the extent that, a. the destruction or damage was intentionally done or caused by the tenant or by a person for whose actions the tenant is responsible under section 41 or 66L; or b. the destruction or damage was the result of an act or omission by the tenant or by a person for whose actions the tenant is responsible under section 41 or 66L and the act or omission occurred on or about the premises and constitutes an imprisonable offence.
- Accordingly, 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. See Guo v Korck [2019] NZHC 1541.
- I discuss the damage individually as follows. Carpet damage
- The carpet has been extensively damaged in [Tenant 4]’s room by water which appears to have come from his pot plants. He accepts that this is how it happened but is surprised as he says all his plants had holders and were on a sheet.
- Ms Thomas’ evidence is that her insurance company has declined the claim and seeks compensation for the $1,569.90 she has been quoted to replace the carpet. She says it is unrentable as it is.
- I am satisfied that the damage was caused by the careless actions of [Tenant 4] in the use of his room. He is therefore liable for the replacement cost bearing in mind depreciation and the s49B cap. The carpet was approximately five years old which is half the expected life span of a bedroom carpet in a New Zealand residential tenancy. Therefore, it is appropriate to award half of the cost of repair (which is below the s49B cap) to account for depreciation. Walls
- The tenants’ television, shelving unit and freezer have damaged the walls. Ms Thomas claims $230 to plaster, sand and patch paint the damage. The tenants accept liability but challenge the amount claimed as the work had been undertaken by Ms Thomas’ husband who is a builder.
- I am satisfied that the amount claimed is reasonable and could well have been much more. Accordingly, I award the amount sought which is less than the s49B cap. Depreciation is not considered as the areas were only patch painted, therefore the landlord is no better off than she would have been had the damage not occurred. Bedside table
- A bedside table in [Tenant 4]’s room has got damaged by his salt lamp, to the extent that it has to be replaced. This was gradual damage and as Ms Thomas warned him about it during the tenancy, I am satisfied that it is careless damage. Ms Thomas has sought $200 which is less than it will cost to replace. It was one of a set therefore any replacement will place Ms Thomas in a lesser position than she would have been in but for the breach in the RTA.
- It was three years old at the commencement of the tenancy and so is close to four years old now. Such items have a 5-year life span according to depreciation guidelines. Taking into account depreciation I am satisfied that an award of $100 is reasonable in the circumstances. Ottoman
- The ottoman that was in the lounge has got cracked and damaged to the extent that Ms Thomas considers it has to be replaced. The tenants say this is fair wear and tear; Ms Thomas says that as it is only damaged on one side, it must be careless damage. Having considered the photos of the damage, the fact it was placed to be used essentially as a coffee table in a small room, and that the ottoman was approximately five years old, I find this damage to be fair wear and tear. Accordingly, this claim is dismissed. Curtains
- The curtains in [Tenant 4] and [Tenant 3]’s rooms were mouldy to the extent they had to be replaced. The photos show the mould on [Tenant 4]’s curtains is extensive and indicative of poor ventilation. He accepted that he kept one set of curtains permanently closed for privacy and did have plants in his room for a period. Accordingly, I find that damage to be careless damage and as such the tenants are liable for the replacement bearing in mind depreciation.
- [Tenant 3]’s evidence is that the mould on his curtains occurred between when they left the tenancy in August and the end on 28 October. They had moved out and so were not ventilating. However, they were still responsible for the tenancy until the last date, therefore I also find this careless damage.
- I do not accept the tenants’ claims that the mould occurred on the curtains because the property was HHS incompliant. Because of the nature and extent of this mould I have found more likely than not that it was the result of inadequate ventilation. Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
- Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
- Ms Thomas had provided a dehumidifier with the property and there were explicit directions contained within the tenancy agreement as to how to ventilate adequately in such a home. The inspection notes indicate the property wasn’t being effectively ventilated or cleaned during the tenancy.
- I do not find it proven that the home is inherent to mould or that it could not be ventilated. I also find it more likely than not that the tenants did not adequately ventilate or wipe down mould and condensation. Accordingly, the responsibility here lies with the tenants.
- The amount claimed is $504. The curtains were approximately three years old and current depreciation guidelines estimate the lifespan of curtains in a residential tenancy to be eight years. Therefore, I deduct the amount claimed by 40% to account for depreciation. Storage unit
- The storage unit in the lounge has been damaged by some sort of force being applied to it. The tenants think it occurred in the burglary as they were not aware of it prior. It was a couple of years old which I consider a reasonable life span for such an item as it is a basic, cheap cube which can be readily purchased. Accordingly, I make no award for compensation. Bathroom mat
- Ms Thomas claims that the bathroom mat was returned stained and has to be replaced. [Tenant 3] says he washed it and the stains are the patterning. I do not find it proven that this was careless or intentional damage as the stains are consistent with fair wear and tear. Accordingly, the claim is dismissed. Cushion covers
- Ms Thomas claims $32.20 compensation for having to replace two stained cushion covers. The tenants’ submission is that the marks are fair wear and tear. Having considered the evidence I find that this damage is more than fair wear and tear as the marks are numerous and significant. It appears that no care was taken in their use as numerous things have been spilt on them and not wiped up.
- The cushions were halfway through their expected life span according to depreciation guidelines, therefore I award compensation of half the amount claimed. Window
- A lounge window got damaged during the tenancy which resulted in Ms Thomas’ husband having to bog the holes, re-screw the stays, and plaster, sand and paint the damage. He gave evidence to say that the damage indicated that extreme force had been applied to the window as the jam was split.
- The tenants say the window was old and rotting and wasn’t opening properly in the first place. They did not even notice it when it occurred but think it must have happened by the wind blowing it when it was latched ajar.
- Given Mr Thomas is a qualified builder I accept his evidence on the nature of the damage, especially since the tenants didn’t even notice it occurred. I do not find it proven that the window was rotting. Accordingly, I find it more likely than not that the damage occurred by the careless actions of a tenant or someone a tenant allowed onto the property and find them liable for the repair which is not significant given Mr Thomas’ skills. Smoke alarms
- Ms Thomas seeks compensation and/or exemplary damages for the tenants removing the smoke alarms. The tenants agree they took the one down in the lounge when it was beeping and did not replace the battery. They say they did not feel they needed to as there was another in the hallway by the bedrooms.
- A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) RTA. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A RTA.
- The tenants have removed a smoke alarm and failed to replace it or ask their landlord to. Accordingly, they have 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) RTA.
- In this case I have considered the section 109 criteria, and conclude that exemplary damages must be ordered, for these reasons: a.The removal of the alarm was an intentional act by the tenants. b.The alarm remained down for an unspecified amount of time but certainly a number of months. c.The effect of the removal was that the premises and the occupants were at risk from fire although there was another smoke alarm in relatively close proximity. The gravity of having no smoke alarms is obvious. d.By setting the level of exemplary damages high, Parliament has signalled that there should be a significant consequence for such a breach. e.It is certainly within the interests of tenants, landlords and the general public, to ensure residential premises have working smoke alarms. f.It would be just to make an order.
- In the circumstances of this case, I consider a reasonable order would be $1,000. I have no evidence before me of a history of the tenants committing similar breaches, and there are no particularly aggravating features demanding a higher order. Leaving unsecure
- Ms Thomas seeks compensation for the tenants leaving the property insecure on three occasions, one of which resulted in the burglary. The latter has been addressed above. The RTA does not specifically require tenants to keep a premise locked. It does of course require tenants to ensure the property isn’t damaged as a result of their carelessness. As it has not been proven that damage was inflicted on the property on the other occasions of it being left unlocked, I dismiss this claim. Unlawful use
- Ms Thomas claims the tenants have used the premises unlawfully, by consuming marijuana on the premises. She says she has seen a bong, found marijuana remnants and a suspect plant, and smelt it on various occasions. She took the plant and remnants to a laboratory who told her to take it to the Police. She says the Police advised her it was marijuana, but they would not take the matter any further.
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose; see section 40(2)(b) RTA. It is an offence under the Misuse of Drugs Act 1975 (MDA) to use and possess marijuana. Therefore, to use or have marijuana in a tenanted premise is still unlawful according to New Zealand law.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A RTA.
- [Tenant 3] in his initial discussions with Ms Thomas about it says he was not aware at that time that marijuana was being used. None of the other tenants wish to comment on this allegation.
- Having considered the evidence, I find it more likely than not that the tenants have used marijuana in the premise, which is an unlawful use, therefore they have committed an unlawful act.
- Applying the statutory test, I consider there to be sufficient evidence of intent, as the tenants were undoubtably aware that use of marijuana is unlawful.
- In taking into account the factors of s109 RTA, I consider the following: i. Because cannabis is a Class C controlled drug the harm from this drug is considered by Parliament to be in the lowest category of moderate risk of harm to the individual or society by its misuse; section 3A MDA. ii. There has been an emotional toll on Ms Thomas of the tenants’ use of marijuana. She has asked them repeatedly to cease their use, only to ostensibly have her requests ignored. She has had complaints from the neighbours and has gone to the extent of taking the implements to a laboratory to try and have it assessed and to the Police station. iii. There is limited public interest in sanctioning such use and there is no evidence here that the tenants had marijuana intended for supply in their possession.
- I therefore consider it just to award a modest amount of $150.00 exemplary damages Other claims
- Ms Thomas claims compensation for the extensive time it has taken her to attend to the tenants’ breaches such as replace items, seek quotes, arrange work and compile this application. She says it has consumed her for many months and was exceptionally stressful.
- Being a landlord is a business which brings with it ancillary time and work. I consider that this decision compensates the landlord where allowed by the RTA and all other ancillary costs are business costs which come along with the business of running a residential tenancy. Every party deals with such a situation in a different way and I do not find it reasonable that the tenants should compensate Ms Thomas for the way in which she has responded which was diligent and thorough.
- Finally, Ms Thomas also seeks compensation for the behaviour of [Tenant 3] which she says was bullying. I do not find this claim proven. Certainly, there was considerable misunderstanding between the parties, but a claim of bullying or harassment has a high threshold and includes an intentional element which I do not find met here. Tenants’ application Healthy Homes
- The tenants claims that the landlord has breached her obligations under section 45(1)(bb) of the RTA, which requires compliance with the HHS. In particular they say she has failed to comply with the HHS moisture ingress and drainage standard which she was required to do within 90 days of the commencement of the tenancy.
- The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
- 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) RTA.
- The tenants claim the following compensation with respect to this breach: i. $288 reimbursement for commissioning a HHS report; ii. $1,600 being compensation for [Tenant 4]’s sick days; iii. $500 for [Tenant 1]’s sick days; iv. $3500 rent reimbursement for the provision of a sub-standard home. v. Compensation for high electricity bills as they have had to run a dehumidifier constantly and the heat pump often.
- In July the tenants became concerned that the home was HHS incompliant, so they obtained a HHS report by [The property inspector/s] (first report). The first report failed the premise saying it required a ground moisture barrier, and the living room window frame and back door needed to be repaired. Mr Thomas repaired the window, and that issue is discussed above. He also sealed other windows and the door frame. The remaining issue therefore became the ground moisture barrier.
- The tenants’ submissions with respect to the state of the home are contained in paragraphs 12-16, 21 of the 21 October decision. Essentially, they say it was a cold, damp, miserable place to live, probably because of the lack of the barrier.
- Ms Thomas disputes the veracity of the first report as she says that [The property inspector/s] is not credible. Her investigations have raised the following concerns for her about [The property inspector/s]: a. That he is not a certified building inspector through Wellington City Council (WCC). b. Although it said on his website that he was is associated with [The association], [The association] says he is not and after this was reported he removed their logo from the website. Ms Thomas understands that [The association] are taking legal action against [The property inspector/s] for falsely associating himself with them. c. Whilst he told her he was a quantity surveyor, the NZ Institute of Quantity Surveyors (NZIBS) has confirmed he is not a member. d. Whilst he told her he was a builder, the Building Officials Institute of NZ (BOINZ), the Ministry of Business Innovation and Enterprise (MBIE) and the New Zealand Institute of Building Inspectors (NZIBI) have confirmed he is not registered with them. e. Whilst he told her he was a civil engineer, Engineering NZ has advised her that he is not registered with them. f. The Building Research Association of New Zealand (BRANZ) said the first report was inaccurate, incomplete and ill-advised.
- On the basis of these credibility claims, Ms Thomas therefore disputes the need for a ground moisture barrier. She says she has taken advice from MBIE, the Energy Efficiency and Conservation Authority (EECA), BRANZ, WCC [redacted] that such a barrier is not required given the level of underfloor ventilation. She has provided considerable evidence regarding the New Zealand Standard Energy Efficiency NZS4246:2016 and the Building Code and Building Standards which support her position.
- Ms Thomas’ perspective is that the tenants have created the damp environment in the home by failing to open windows regularly, drying wet clothes inside, keeping damp plants in the house, keeping curtains closed and not wiping down condensation or mould. She says that during each of the inspections in May, August and September the house was unclean and untidy. Accordingly, she issued several 14-day notices to the tenants to ventilate and clean the property, including to wipe down condensation.
- Ms Thomas also presented a lengthy video demonstrating that the ground under the house was dry, even when it was raining, as evidence that the ventilation is such that a ground moisture barrier is not needed.
- In response to the first report, Ms Thomas has subsequently commissioned two further reports: from [Second report writer] (second report) and [Third report writer] (third report). Both of which have passed the property as HHS complaint, noting that the premise is exempt from requiring a ground moisture barrier. As well as having these two reports Ms Thomas has presented ample evidence regarding the requirements for ground moisture barriers which indicate that this premise does not require one for compliance.
- The tenants challenge the veracity of the second report as they could not find the writer or company online. They were not in attendance when the investigation was undertaken and the presentation of the report, they say is suspicious. They tried the contact details of the writer but got no response, nor is [Second report writer] on the NZIBI list.
- The tenancy agreement is silent as to the property’s compliance with the HHS.
- Having considered all the evidence, I find it more likely than not that the property is HHS compliant. I am satisfied that the premise does not require a ground moisture barrier because it is adequately ventilated underfloor.
- As discussed above, I also do not find it proven that the home is inherently damp. Accordingly, these claims for compensation are dismissed. I note that I have dismissed the claim for reimbursement of the cost of the first report as although tenants are not required to pay for such reports, they did not ask Ms Thomas to provide them with the information prior to obtaining the report which would have been the more appropriate cause of action.
- I am satisfied that the tenants were entitled to rely on the first report, and it is disappointing that they have been let down here by [The property inspector/s] as his assessment appears to be wrong. The tenants were genuinely attempting to ensure they were living in a healthy home and it is a pity that the communication between the parties was such that despite them both trying to achieve the same goal, they have fallen out. The tenants were clearly struggling to live in the house as it was, and I find have acted genuinely in the action they took.
- I am satisfied that the steps Mr Thomas took in affixing the windows in the living room and [Tenant 4]’s room were reasonable as there were other opening windows available.
- However, pursuant s13(1CA) of the RTA landlords must include in tenancy agreements when and how the property will be complaint with the HHS. Breaching this section is an unlawful act pursuant to s13(1F) of the RTA and exemplary damages up to a maximum of $750 can be awarded for such a breach. Nothing was included in this tenancy agreement which is a breach of s13(1CA) of the RTA.
- Ms Thomas was a seasoned landlord therefore should have or did know of this requirement, accordingly the intentional element of s109 is established. In considering the other factors, I find that the omission of this information has led to such a situation of uncertainty and concern for the tenants that they felt compelled to go to the cost of commissioning their own report. It has started the parties down a track of miscommunication and stress.
- I note that the tenants did not request the information from Ms Thomas however and went ahead and commissioned the first report without consultation. I do not consider that Ms Thomas failed to provide this information deceitfully, more likely was simply negligent in ensuring her compliance. Finally, I find it in the public interest that landlords ensure their tenancy agreements are complete and accurate.
- Having considered all the above factors, I am satisfied that an award of $200 exemplary damages is justified. Filing fee
- As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. Suppression
- Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. The tenants seek suppression, and as they were successful in their application to end the tenancy early and in their defence to some other claims, I grant that application. Ms Thomas does not seek suppression.