What was Tenancy Tribunal case 4376664 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4376664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4376664?

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

Where can I read the official tribunal order for case 4376664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8252095-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4376664 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4376664?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4376664?

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

Where can I read the official tribunal order for case 4376664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8252095-Tribunal_Order_Redacted.pdf.

22B Pererika Street, Victoria, Rotorua 3010 Tenancy Tribunal Case 4376664 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the [Tenant] name and identifying details.
Arent1 Limited And Quan Shu must pay [The tenant/s] $$4,500.00 immediately, being exemplary damages for breaches of ss 19 and 45 of the RTA.
[The tenant/s] and their representative may have the matter recalled within two months of the date of this Order if there are still Healthy Homes Compliance issues at the premises.

Reasons

Both parties attended the hearing.
The Tenant has, by her representative, applied for exemplary damages as follows: a. $7,200.00 for significant breaches of s 45 Residential Tenancies Act (the RTA); b. $1,500.00 for the Landlord’s failure to lodge the bond on receipt: s 19(2) RTA c. $450.00 for the Landlord’s failure to provide reasonably secure premises: s 46 RTA d. $3,000.00 for the Landlord’s interference with the reasonable peace, comfort and privacy of the Tenant: s 38 RTA
[The tenant/s] claim that the Landlord has breached its obligations under s 45 of the RTA.
Duty to maintain: Section 45(1)(b) of the RTA details a landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
A landlord’s obligation under s 45 of the RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. What is a reasonable timeframe will depend, not only on the seriousness of the problem, but also on any objective attempts made by the landlord to investigate, and put right, the problem.
A tenant must notify the Landlord of the problem as soon as possible after discovery of the need for repairs. 1
Compliance with building, health and safety requirements: Section 45(1)(c) of the RTA provides that the landlord must comply with all requirements under any enactment regarding buildings, health and safety in so far as they apply to the premises.
The Building Act 2004, Health Act 1956, Housing Improvement Regulations 1947 and Residential Tenancies (Healthy Homes Standards) 2019 (HHS) collectively define some of the minimum standards of fitness for houses.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
Heating: The heating standard requires landlords to provide one or more 'qualifying heaters', with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ 1 Duty to advise landlord of defects: A tenant has a statutory duty to advise its landlord of any defects under s 40(1)(d) of the RTA. Consequently, a tenant should promptly notify a landlord of any defects, and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so: Merwald Real Estate v Lanauze DC Auckland MA151/89, 2 August 1989.
The HHS does provide exemptions in specific circumstances.
Ventilation: The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances.
Draught Stopping: The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Moisture Ingress and Drainage: The moisture ingress and drainage standard requires 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.
The HHS does provide exemptions in specific circumstances.
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.
The Tenant contends as follows:
SUBMISSION ONE: The property does not meet the regulations stipulated in HIR 1947. The property does not comply with HHS.
1. From July 2021 private rentals must meet the five healthy homes standards within 90 days of any new or renewed tenancies that start on or after this date. The tenancy commenced on 23 December 2021. Therefore, compliance was required by 23 March 2022. Application
2. Heating: A landlord must provide an approved form of heating in the living room and ensure that this is well maintained. Mr Shu has not provided sufficient heating, because there is none. There was no heating when the tenancy commenced. Mr Shu has made no attempt to remedy this issue.
3. Ventilation: As the S.O report and Oncore report demonstrates, Mr Shu has failed to comply with ventilation standards as follows: a. The bathroom and kitchen do not have extractor fans, b. Two windows (1 x lounge & I x bedroom) are broken and require replacement. They are unable to be opened.
4 Draught stopping: There must not be any gaps or holes in walls, ceilings, windows, skylights, floors, and doors. The assessment carried out by S .0 and Oncore shows that there are multiple windows that have large cracks that are likely to cause draughts. The S.O report confirms that the windows and doors presented gaps of over 3mm. Externally, there is rotten timber joined on the kitchen window, and the toilet and lounge window are missing putty (hence contributing to the draught).
5 Moisture Ingress and Drainage: The report from Oncore demonstrates a concerning level of groundwater and cladding issues resulting in internal leaks and significant mould growth. S.O, at the time of their assessment, noted the property was surrounded by ankle-deep water, pooling in a dug-out garden up against the house. The lawn around the house was sodden with pools of water, and there was a concerning amount of pooling under the house. There was no sign of the water draining away.
6 The kitchen and bathroom areas (the western side of the house) have been noted as particularly problematic, with moisture damage evident from the rotting floorboards in the bathroom and extensive mould on the ceiling. There is also extensive warping of the kitchen wall, mould growth and moisture on the ceiling in the kitchen. Mould growth is also apparent in the kitchen cupboards. S.O has stated that this is likely due to the external condition of the property.
SUBMISSION TWO: Mr Shu has failed to maintain the property to an acceptable standard. He has also failed to ensure the premises are reasonably secure. Mr Shu was aware of all the issues with the property, as they were present before the commencement of the tenancy.
1 Windows: Addressed at 2.3(b). Mr Shu was aware the windows were broken in the lounge and bedroom, as they were in this condition when the tenancy commenced. The tenants have been in the property for eight months, the windows have not been remedied in this time.
2 Back door: The back door does not open properly. Mr Shu was made aware of this by the tenants soon after the commencement of her tenancy. Mr Shu had not remedied this matter. This is a concern if there was ever an emergency (ie, fire exits).
3. Front door: Difficult to open (sticks) when opening, needs repair. As above. Mr Shu was made aware of this by the tenants after the commencement of tenancy. Mr Shu has not remedied this matter.
4 Toilet: The toilet is leaking onto the floor; the toilet seat is broken. The toilet seat was broken at the commencement of the tenancy and has not been remedied. The toilet was also leaking at the commencement of the tenancy. Mr Shu has been notified of both issues, these have not been remedied.
5 Light switch cover: Needs replacing in the bedroom and was in its current condition when the tenants moved in. Despite the tenants bringing this to Mr Shu's attention, this has not been remedied. (See Annexure 'C'
6 Damage to the bedroom door: [The tenant/s] instructs the door was broken and off its hinges when she moved in. Her son-in-law reattached the door so at least the door was on, however, it is still damaged. (See Annexure 'D')
7 Holes in wall: There is one large hole in the lounge wall along with other smaller holes and one in the bedroom wall. The holes were present when [The tenant/s] moved in. Mr Shu has not remedied this. (See page 4 S.O report of an example of the hole in the lounge wall). (See also Annexure 'E').
8 Window latches: There are two broken window latches, one in the bedroom and one in the lounge, These were broken when [The tenant/s] moved into the property (See Annexure 'F').
The Landlord assured the Tribunal the premises comply with the HHS standards. However, the premises should have complied with the HHS by 23 March 2022, and it was not until August, when the Tenant filed her application that the Landlord installed a heat pump in the lounge and a proper extractor fan in the bathroom. The home remains draughty, with an unsealed gap under an external access door, and moisture ingress and drainage issues have yet to be addressed by the Landlord; he has engaged contractors to ‘sort it out’ he says.
I have considered the HHS reports produced by the Tenants and find the Landlord has failed to comply with the HHS, and in doing so, 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: s 109(3) RTA
In previous Tribunal Orders I have advised the Landlord of the HHS (including specific requirements and key dates). During the hearing I made a quick search of the published Tribunal Orders on the Tenancy Tribunal Website (Tenancy Tribunal (justice.govt.nz) using the keywords “Quan Shu” and “Arent1”. I found several Tribunal Orders, the earliest dated 5 July, advising the Landlord of his obligations under the HHS.
The Landlord says it had only come to fully appreciate the HHS two weeks ago. I find it hard to accept this evidence in light of the many, often costly, reminders it has already received.
I do accept English is a second language for the Landlord, but ignorance of the law is no excuse in this case, particularly where there is a human cost, and the wellbeing and safety of his Tenants is at stake.
The Landlord related how it faced significant economic challenges when the country entered a nation-wide lockdown, having just purchased and renovated a swathe of properties for AirBnB purposes. The Landlord scrambled to tenant these properties when international borders closed, and the tourist tap turned off.
In many cases, the Landlord’s property and tenant management skills have been less than satisfactory. It has failed to appropriately manage tenant expectations, leading to disappointment and distress.
Still, we are amidst a housing shortage locally, and the Landlord is not solely to blame for the intemperate decisions of tenants who take less than adequate rentals because they have nowhere else to go. Equally, the Landlord has by making such homes available, facilitated in the systemic exploitation of vulnerable tenants.
The premises they initially agreed to rent were not yet vacant, and so the Tenants agreed to take up these premises, behind the first premises, which the Landlord offered to them at the last minute. They had nowhere else to go, Work and Income refusing to house them if they turned down a substandard but ‘viable’ offer of accommodation. (I would be interested to know how the Tenant’s dialogue with Work and Income went but I gather they had already applied for an accommodation supplement and Work and Income would have wanted to have their reasons for pulling out and penalised them for not taking the property when it was technically still available, just not HHS compliant. If this is the case, and I note there was no representative from Work and Income present to comment, Work and Income’s policy needs to be urgently revised to account for the HHS.)
Clearly, the Landlord could not force the Tenants to rent the property if they did not want it, and it could not compel a recalcitrant, former tenant to quit the intended premises, without an eviction notice.
I accept the Tenant’s harrowing evidence as to the effects of the substandard living conditions at the premises on her mental wellbeing and physical health.
One of the Tenant’s had a traumatic past, having been assaulted in her home. I do not relate her experiences here but note her sense of vulnerability was heightened each time the Landlord and his contractors visited the premises to effect repairs on the premises, often unannounced, and for short-term fixes which needed to be closely monitored by the Tenant and revisited soon thereafter (in the case of the roof). This should not have been the Tenants’ experience and took away from their peace, and quiet enjoyment of the premises. Maintenance
I intend to deal with the Tenants’ claim in respect of the Landlord’s failure to maintain, before returning to determine what exemplary damages should be awarded for the Landlord’s collective infringements of s 45 of the RTA. This is how the Tenant has framed its prayer for relief.
The Landlord did address many of the maintenance issues raised by the Tenant. The Tenant raised only a few of these issues in writing, so a significant portion of the hearing time was used to establish the Landlord’s knowledge.
It was not until August, when the Tenants’ filed their application with the Tenancy Tribunal, listing various maintenance issues, that the Landlord fixed them. The Tenants’ evidence is that they verbally told the Landlord about these issues and it must have known of them before the tenancy anyway, as it would have seen them when the Landlord came to the home, and they had been present since the start of the tenancy.
[The witness], a former tenant, was called by the Tenants’ as a witness. [The witness] confirmed all of the following were unremedied during his tenancy (see. Items listed by the Tenants in their submissions at paragraph 20 above, which were all put to [The witness] to comment on): a. Windows: The windows were broken in the lounge and bedroom, as they were in this condition when the tenancy commenced. b. Back door: The back door did not open properly. c. Front door: Difficult to open (would stick) when opening, needs repair. d. Toilet: The toilet leaked onto the floor; the toilet seat was broken. e. Light switch cover: Broken. f. Damage to the bedroom door: The door was broken and off its hinges. g. Holes in wall: There is one large hole in the lounge wall along with other smaller holes and one in the bedroom wall. h. Window latches: There were two broken window latches, one in the bedroom and one in the lounge.
[The witness] and the Tenants also mentioned the following, additional issues: a. The toilet blocked often; and b. Warped floor boards, walls and cabinetry in the kitchen.
I found [The witness] to be a credible witness. He did not falter when I asked him direct yes or no questions.
The Landlord indicated many of the above issues had been caused by the Tenants fighting at the premises. It may be true that they were caused by fighting, but not by these Tenants.
The Landlord indicated it had not inspected the premises between tenancies but had relied on the former tenant, [The witness]’s then partner, as to the condition of the premises at the end of the tenancy; she said there was no damage. [The witness] acknowledged some of the damage had been caused during arguments with his partner, including a hole in the roof. There were similar such holes throughout the home with the Tenants’ said they were not responsible for.
I prefer the Tenants’ evidence and consider the issues raised by the Tenants, which the Landlord had direct knowledge of, were not properly rectified for at least eight (8) months, and even then, it was not until the Tenants brought their application the Landlord took steps to remedy the issues.
I was unable to conclude on the evidence that the Landlord knew or had been advised or would have known of he window latches being broken. I consider this a latent defect. Consequently, I cannot award compensation for failure to maintain the window latches, and I do not find the Landlord has failed to ensure the premises are reasonably secure pursuant to s 46 of the RTA.
The Tenants’ representative, [The tenant/s representative], makes the following submissions in terms of what would be an appropriate award for exemplary damages in this case: We consider this issue of public interest due to the importance of landlord's complying with HHS, and the fact that Mr Shu is a serial offender when it comes to lack of maintenance with his properties. There have been serious, and a series of breaches of section 45 RTA, starting from before the commencement of the tenancy. The landlord has taken a minimalist approach to repairs, which has meant that issues of health and safety, and concerns about the structure of the property have been intentionally ignored, despite the concerns raised by the tenants. The source of the mould has not been investigated and the healthy homes compliance deadline of 90 days has not been met. J Smith asserts in Richards v Gourlay Properties Limited that 30% of the maximum can be considered as 'just' for a first-time incident. l We recognise Mr Shu is a repeat offender, and we have represented other clients who have been subject to his deliberate failure to maintain and repair his rental properties to an acceptable standard. We submit that the serious breaches of the landlord's obligations under s 45 RTA, the conditions that the tenants are living in and the landlord’s failure to comply with HHS regulations should warrant the maximum award, this being $7,200. When considering this sum, we also ask the adjudicator to consider that the tenants have been paying $500 weekly for this property - well in excess of what they should be paying, considering its current condition, their inability to open windows, living with extensive mould, rotting floorboards, warped walls and holes in walls, doors and ceilings, and a broken and leaking toilet, and most alarmingly, absolutely no heating...
I agree with [The tenant/s representative] submission, this is a particularly brazen breach by the Landlord of its obligations, considering the number of reminders it has already received by this Tribunal.
I have given the Landlord some credit for the repair of the roof, which did fix the leaks, and the installation of a heat pump in the lounge and extraction fan in the bathroom.
While the Landlord has been compelled to compliance, it has, nevertheless, complied for the most part, with the HHS, drainage and draught-stopping excepting.
I award $4,500.00 to the Tenants in exemplary damages for the Landlord’s breaches under s 45 of the RTA.
I direct the Landlord to check and remedy any draught under the front door and to have contractors install proper drainage at the premises. The Tenant may have this matter brought back to the Tribunal within two months of the date of this Order if the Landlord has not complied with the HHS requirements. Quiet Enjoyment
[The tenant/s] claims the landlord has interfered with their quiet enjoyment of the premises.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The Tenants say the Landlord and his contractors visited the premises frequently, often unannounced. I have dealt with this matter already (see paragraph 33), and it has weighed in my determination of the effect, on the Tenants, of the Landlord’s unlawful acts under s 45 of the RTA Failure to Lodge the Bond
[The tenant/s] claims the Landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received: s 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00: s 19(2) and Schedule 1A Residential Tenancies Act 1986.
The Landlord failed to lodge the bond. I find 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) Residential Tenancies Act 1986.
This is not the first such infringement for this Landlord, and I consider he has held onto bond money to aid with cashflow troubles. While this is not lawful, his actions have not been designed to gain an advantage over or trample the Tenant’s rights to, for example, strengthen his position in a dispute.
Having regard to the manner in which I must exercise my judicial discretion in s 85 of the RTA, I consider the amount of $500 is fair for this infringement, but do not consider I should be as lenient on the next occasion. Unlawful Rent
[The tenant/s] claims the landlord has required more than two weeks rent in advance or rent before the already paid rent expires.
The Tenants’ did not establish this claim at the hearing. Filing Fee
Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4376664 — Mould & damp at 22B Pererika Street, Victoria, Rotorua 3010

Tenancy Tribunal case 4376664 — Mould & damp at 22B Pererika Street, Victoria, Rotorua 3010

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions