Published tribunal order
Tenancy Tribunal case 4393680 — Rent arrears in Kelston, Auckland
Decided 25 Oct 2023 · Published 25 Oct 2023 · Application 4393680
- Rent arrears
- Cleanliness
- Property damage
Party names are redacted in the official published order.
Order
- The tenant’s name and identifying details, including the tenancy address, must not be published
- The Bond Centre is to pay the bond of $2,400.00 ([Bond number suppressed]) to [the tenant] immediately.
- Auckland Rentals Limited trading as City Apartments Limited must pay [the tenant] $917.35 immediately, calculated as shown in table below.
Reasons
- The tenant attended the hearing for herself. 1
- George Song and Barry Thorn attended for the landlord.
- The tenant claims 2 the landlord breached its obligations to maintain the premises in a reasonable state of repair, keep the home free from dampness, and to comply with the Healthy Home Standards (HHS). She seeks compensation and exemplary damages.
- The landlord has claims 3 for rent and water arrears, compensation for rubbish removal, cleaning, missing chattels, repairs, removal of copper pipes, and methamphetamine decontamination. Background
- The tenancy began on 19 October 2019. The only written tenancy available is the original fixed term tenancy, which was due to end on 19 October 2020. The landlord is named as Auckland Rentals Ltd (also trading as City Apartments Ltd). The tenant is the only tenant named.
- There being no documents confirming that the tenancy was renewed, it is likely the tenancy automatically became a periodic tenancy after the fixed term tenancy ended on 19 October 2020.
- The Tribunal ended the tenancy at midnight 29 November 2023. 4
- The house is on two levels. There were four bedrooms, a kitchen, and a bathroom upstairs.
- The landlord described the downstairs area as a living area. However, the tenant says downstairs has its own entrance, with a kitchenette bench and sink, lounge, and a bedroom.
- When the tenancy began, the tenant’s daughter occupied and slept in the downstairs area. However, after a leak into the downstairs of “[a]pprox 5-10 cms of water on the floor” 5 on 27 May 2020, the tenant’s daughter moved out and the tenants says nobody slept or fully occupied the downstairs area again. 6 1 The hearing was at Waitakere District Court on 26 September 2023. 2 The claim is a rehearing of the tenant’s application originally decided by another adjudicator on 29 November 2022. The landlord did not attend that hearing due to not receiving the notice of hearing. The tenant’s claim is heard de novo (i.e. afresh). 3 The landlord filed its crossclaim after the tenant’s claim was originally decided. 4 See n 2. 5 Tenant’s email to the landlord on 27 May 2020. 6 Both parties provided photographs of the property in support of their respective positions.
- The landlord says there were about four separate downstairs leaking events with different causes, all of which were promptly repaired. The tenant says that the downstairs always leaked when it rained from 27 May 2020, but there were times when the leaking became a flood which is when she would again plead the landlord to rectify the problem.
- The tenant says there were other maintenance problems that were also not repaired within a reasonable time including the oven didn’t work, broken windows, power problems, the vanity was rotting, and there were excessive gaps in external doors and under a step.
- The landlord denies the tenant’s claims and says the tenant owes the landlord for rent, water, and various costs. The issues for determination
- The issues for determination are: a. Did the landlord fail to maintain the premises to a reasonable state of repair or to meet its other related obligations? b. Should the tenant be ordered to pay rent and water arrears? c. Should the tenant be ordered to pay compensation for the landlord’s costs incurred to repair and remediate the premises?
Did the landlord fail to maintain the premises in a reasonable state of repair?
Legal principles
- Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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... ... (bb) comply with the healthy homes standards... ... (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises...
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
- Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 7 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 8 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
- Landlords also have an obligation to repair things that are apparent from observation: 9 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
- Under s 45(1)(bb), landlords have to meet the Healthy Homes Standards in respect to heating, ventilation, water ingress, and draught stopping by certain dates. Between 1 July 2021 and 1 July 2025, all private rentals must comply with the healthy homes standards within certain timeframes from the start of any new, or renewed, tenancy. In this case, the HHS did not apply because the tenancy appears to have been continuing since before 1 July 2021.
- However, under s 45(1)(c), the Housing Improvement Regulations 1947 do apply to the tenancy. Regulation 15 states: Every house shall be free from dampness.
- Regulation 17(1) states: The materials of which each house is constructed shall be sound, durable, and, where subject to the effects of the weather, weatherproof, and shall be maintained in such a condition. 7 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. Footnotes not included except for see n 6. 8 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 9 See n 5. Discussion
- The tenant claims that the landlord failed to maintain the premises and to keep them free from damp in respect to the downstairs leaking. The first occurrence of leaking was on 27 May 2020. The tenant also says the landlord did not address other significant maintenance issues within a reasonable time.
- On 1 August 2021, the tenant emailed the landlord a list of items needing repair that had been outstanding for at least six months including “water still leaking” downstairs, a broken window, oven not working, power problems, vanity rotting, excessive gaps in external doors and under a stair. 10 The tenant concluded her email with: George, please understand our frustration and the reasons we are not happy with the home we are living in. We deserve at least a warm house with a working oven without water coming in As well.
- The landlord says the downstairs did not constantly leak. Rather, there were different leaks with different causes over the years that the landlord repaired in a timely way. Mr Song produced a contractor’s statement that confirms: Every time when I attended a water leak, the reason for the leak was different. So the water leak issues were attended in the timely manner and different issue was fixed at the time.
- The tenant disagrees. She says that it leaked downstairs whenever it rained and the landlord never stopped the leaking. She emailed the landlord when the downstairs flooded (rather than just leaked), damaging property and causing more serious inconvenience, but that does not mean the leaking was not ongoing.
- The tenant produced two emails she sent to the landlord about the leaking problem on 22 April 2022 and 12 July 2022. In the latter email, the tenant stated: Downstairs – water flooding. (Ongoing issue, 2 yrs+) As per out conversation today, there are many excuses you have used that do not concern me. My concern is the issue has not been resolved- 2 yrs have passed and this is even LARGER ISSUE NOW. ... You also suggest having the two rooms voided for now...and offer $50 off the rent increase...This [will] not suffice in any way. 10 Tenant’s email to landlord dated 1 August 2021.
- On 23 August 2022, the landlord emailed: I can confirm that all the repairs including your roof has been fixed for now. The only issue will be the leak from the back of the house into the downstairs rumpus room.
- I find on the balance of probabilities that the leaking problem was an ongoing one. The water ingress may have had multiple contributing causes (some of which were repaired), but the leaking problem never fully solved during the tenancy.
- The landlord accepts the tenant emailed on 1 August 2021 that among other things, the oven was not working properly. It took the landlord until 8 December 2021 to address the oven issue.
- The landlord stresses that getting repair work done promptly was difficult during 2020 and 2021 because of Covid-19 restrictions and contractors did not always find it easy to contact the tenant to arrange access.
- On consideration of all the evidence, including the photographs and videos, I find the tenant has proved on the balance of probabilities that the landlord did not maintain the premises in a reasonable state of repair and did not ensure the house was free from dampness. Conclusion
- It follows the premises were not maintained to a reasonable standard of repair, were not weatherproof, and were not free from damp. Remedies
- I have carefully considered the loss of amenity in the premises over the period of time just mentioned.
- I am satisfied that the downstairs leaked and the oven was not working for several months at least.
- The downstairs floor area was relatively large. Prior to the leaking it was a versatile and usable space. Afterwards, the downstairs was much less usable because of the leaking and possibility of flood. I set the loss of amenity in the downstairs area at 7 per cent of the weekly rent which is $42.00 per week. The starting date for loss of amenity is 27 May 2020 and the end date is 29 November 2022. The total amount is $5,502.00.
- I set loss of amenity for the oven at 6 percent of the weekly rent. The starting date is 1 August 2021 when the tenant unequivocally confirmed the issue, and the end date is 8 December 2021 when the landlord rectified the problem. The total amount is $668.57.
- I Have found the landlord committed unlawful acts. 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. 11
- I am not satisfied that the unlawful acts were committed intentionally in this case. The causes of leaks can be notoriously difficult to identify and repair. Arranging repairs was hampered for much of the relevant time by Covid restrictions. The owner of the property arranged for his own contractors to do repairs which meant there was not a direct line of communication between Auckland Rentals and the contractors. I accept Mr Song’s evidence that he endeavoured to address the tenant’s maintenance concerns within a reasonable period of time. Exemplary damages are declined.
- The Tribunal orders compensatory damages for loss of amenity in the sum of $6170.57. Water and rent arrears
- The tenant does not dispute the landlord’s claim for rent and water arrears. Should the landlord’s post-tenancy costs be ordered? Tenant’s end-of-tenancy duties
- 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. 12
- The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
- I do not find it proven that the tenant removed or lost any curtains or curtain rails.
- The amounts ordered in the table above are proven. 11 See RTA, s 109(3). 12 RTA, s 40(1)(e)(ii)-(v).
Is the tenant responsible for the damage to the premises?
- 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. 13
- 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.
- 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.
- After the tenancy ended, the premises’ a person or persons unknown stole the premises’ copper piping. While I understand the landlord is suspicious that someone associated with the tenant is responsible, there is nothing more than suspicion. There is no evidence that the tenant was involved in any way.
- Some hooks were pulled away from the wall and there was some graffiti on the walls. The tenant denies responsibility for the damage. The copper thief or thieves may have done the damage. The damage is not proven to have occurred during the tenancy.
- The tenant does however accept liability for some minor accidental wall damage, children’s scribbling on walls that had to painted over, and some carpet stains. I have taken betterment and depreciation into account. The orders set out in the table are made for these.
- The amounts ordered are proved. Methamphetamine contamination
- The landlord claims for methamphetamine contamination costs.
- The landlord must prove that the tenant caused or permitted the contamination, or that it was caused by someone at the premises with the tenant’s consent. The 13 RTA, ss 40(2)(a), 41 and 49B. landlord must also prove that, as a result of the contamination, the premises have been damaged or are not reasonably clean.
- The tenant denies that she or anyone else smoked methamphetamine during the tenancy.
- The landlord has obtained a positive methamphetamine analysis result from samples taken from the premises. The landlord does not seem to have provided all of the scientific advice such as the covering email, but the test is only a composite test and does not clearly prove methamphetamine contamination of more than 15μg/100cm 2 - the level the Tribunal applies - because the composite result of 15.5μg/100cm 2 is from three samples. 14
- Also, there was no baseline methamphetamine test. The landlord submits the previous occupants of the premises would not have smoked methamphetamine or allowed it. That may be so, but the tenant is in same position: she would not have either and did not.
- Moreover, the samples were not taken until over a month after the tenancy ended. In this case, criminal offenders have entered the premises after the tenancy ended and would have spent some time dismantling the pipework enough to steal the copper pipes. The perpetrators may have stayed on for hours or days and smoked methamphetamine, causing or contributing to the contamination.
- I do not find it proven that the tenant caused or permitted the contamination. Bond
- The Bond Centre is to release the bond to the tenant. Filing fee
- Both parties having succeeded in their cases, no order is made in respect to the filing fee. Non-publication
- The tenant asks for non-publication of her name and identifying details.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public 14 See Full Circle Real Estate Limited v Piper [2019] NZDC 4947. interest or is justified because of the party’s conduct or any other circumstances of the case.
- The tenant has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified by the tenant’s conduct or any other circumstances of the case.
- Non-publication is ordered.