What was Tenancy Tribunal case 4401261 about?

The tribunal order states: Raewynne Ann Graf must pay [The tenant/s] $1,575.87 immediately, calculated

How much money was awarded in case 4401261?

Cleaning: $50.00 awarded to landlord; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Homes Standard (Ground Moisture Barr…: $2,000.00 awarded to tenant; Rent Arrears: $2,394.57 awarded to landlord

What type of tenancy dispute was case 4401261?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4401261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9683114-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4401261 about?

The tribunal order states: Raewynne Ann Graf must pay [The tenant/s] $1,575.87 immediately, calculated

How much money was awarded in case 4401261?

Cleaning: $50.00 awarded to landlord; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Homes Standard (Ground Moisture Barr…: $2,000.00 awarded to tenant; Rent Arrears: $2,394.57 awarded to landlord

What type of tenancy dispute was case 4401261?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4401261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9683114-Tribunal_Order_Redacted.pdf.

48A Tireti Road, Titahi Bay, Porirua 5022 Tenancy Tribunal Case 4401261 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4401261 — net $1,575.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,394.57		Rent arrears
Cleaning	$50.00		Cleaning
Exemplary damages: Failure to comply with Healthy		$2,000.00	Failure to comply with Healthy
Homes Standard (ground moisture barrier		$2,000.00	Homes Standard (ground moisture barrier
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$2,444.57	$4,020.44
Net award		$1,575.87
Bond		$2,396.00
Total payable by Landlord to Tenant		$1,575.87

Claims and awards in Tenancy Tribunal application 4401261 — net $1,575.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,394.57		Rent arrears
Cleaning	$50.00		Cleaning
Exemplary damages: Failure to comply with Healthy		$2,000.00	Failure to comply with Healthy
Homes Standard (ground moisture barrier		$2,000.00	Homes Standard (ground moisture barrier
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$2,444.57	$4,020.44
Net award		$1,575.87
Bond		$2,396.00
Total payable by Landlord to Tenant		$1,575.87

Order

Raewynne Ann Graf must pay [The tenant/s] $1,575.87 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,396.00 ([Bond number suppressed]) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearings which took place over two days on 24 April 2023 and 28 August 2023. Background to the applications
This was a fixed term tenancy starting on 31 July 2021 and ending 31 July 2022. Thereafter, it continued as a periodic tenancy. The tenants gave a 28-day notice to end the tenancy on 15 September 2022. During the tenancy, the parties brought proceedings to the Tribunal which resulted in a Tribunal order dated 21 September 2022 under applications 4328736, 4331439, 4336975, 4340608 and 4365081 (“the 2022 Tribunal order”). The effect of the order was to award compensation and exemplary damages against the landlord for various breaches of the Residential Tenancies Act 1986 (RTA) and the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Work orders against the landlord were also made and an alternative order for compensation if the landlord did not comply with the work orders. Finally, an award of exemplary damages was made against the tenants but, overall, the tenants substantially succeeded with their claims against the landlord. This decision should be read in conjunction with the 2022 Tribunal order.
The current applications were brought by the parties after the tenancy ended.
The landlord, Ms Graf, has applied for rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The landlord claims that the tenants did not leave the premises reasonably clean and tidy at the end of the tenancy; caused various damages during the tenancy which required remediation and are liable for loss of rent and exemplary damages for failing to allow the landlord access to the premises and failing to report damage.
The tenants filed a counterclaim for compensation and exemplary damages for failures by the landlord to comply with HHS regarding a moisture barrier, ventilation and draught stopping, damage to some foam mats and harassment.
Each party filed a wealth of evidence including numerous photos and videos of the premises before, during and after the tenancy ended. While I may not refer to all the oral and documentary evidence presented, the parties should know that I have reviewed and considered all of it.
Each party has the burden of proving their claims “on the balance of probabilities.” Put another way, each must persuade me that what they say is more likely than not. I do not need to be completely certain, but I need to be more certain that not. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.

How much is owed for rent?

The tenancy ended on 15 September 2022. The landlord provided various rent records that were not accurate in several respects by failing to apply rent received in advance to rent owed at the start of the tenancy and failing to take into account awards under the 2022 Tribunal order. I am satisfied after carefully reviewing the relevant evidence that the tenants owe rent to the landlord of $2,394.57 which is made up as follows: Rent periodNos of weeksWeekly rentTotal
7.21-31.7.2252 weeks, 2 days$599.00$31,319.14
8.22-15.9.226 weeks, 4 days$650.00$4,271.43 Total rent due$35,590.57 Less rent paid by tenants$32,596.00 Less credit for alternative money order*$200.00 Less credit for compensation received by way of rent deduction*$400.00 Total arrears$2,394.57 *Credits as per the 2022 Tribunal order
I am satisfied that the landlord did not fully comply with the work orders made in the 2022 Tribunal order before the tenancy ended. Therefore, from 20 August 2022 to 15 September 2022, the tenants were entitled to alternative compensation of $50/rent week or part week that any of the work orders remained outstanding (see order 4 of the 2022 Tribunal order).
The tenants were also entitled to a credit of $400 in relation to compensation payable by the landlord and accounted for by way of rent reduction made on 25 March 2022 (see paragraph 98 of the 2022 Tribunal decision).

Did the tenants comply with their obligations at the end of the tenancy?

Cleaning: 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) RTA.
The tenant's obligation to leave the premises reasonably clean and reasonably tidy 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 based on the subjective opinion of either the landlord or the tenant. Also, a tenant should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
The landlord claims that the tenant did not leave the premises reasonably clean and tidy, and she seeks $256 to cover 8 hours cleaning that she carried out after the tenancy ended. She presented in evidence a detailed inspection report with photos prepared by Moloney & Co, property managers she instructed for that purpose, on 29 July 2021, two days before the tenancy began (“the landlord’s pre-tenancy inspection”). By comparison, she presented some photos taken at the end of the tenancy in support of her claim. However, there is an issue with the dates of some of the landlord’s end of tenancy photos. Some photos were dated a month before the tenancy ended at a prior inspection which are not proof of the condition of the premises at the end of the tenancy. Other photos were not dated, and the landlord was not able to establish with reasonable certainty when the photos were taken. Some photos were taken several days or weeks after the tenancy ended when various contractors had attended the property to carry out works and/or after a new tenancy started (which the landlord advised was on or about 27 September 2022).
The landlord agreed that the tenants would conduct their own inspection on the last day of the tenancy (15 September 2022), which the tenants recorded, photographed, and presented in evidence. The landlord then later walked through the house with the tenants that day to inspect the condition and says she noted various issues with the tenants such as a dirty oven, floors, walls, and cupboard shelves. She also noted some damage in other areas (dealt with later in this decision). However, the landlord did not take any photos or videos in the presence of the tenants at this inspection.
The tenants submit that the photos and videos they took at the end of the tenancy show that the premises were left in a reasonably clean and tidy condition. They also say that the premises were left in the same or better condition than they were provided at the start of the tenancy. While they were provided with a copy of the landlord’s pre-tenancy inspection, they did not think that the report accurately recorded the condition of the premises. Many photos were taken at a distance so did not capture some of the outstanding cleaning and damage. To that end, the tenants took their own photos and videos at the start of the tenancy and added comments to the landlord’s pre-tenancy inspection report to record various areas of concern. They also sent emails on 3 August 2021 to the landlord when they first moved in documenting their assessment and sharing a link to the photos and videos they had taken.
An example of a discrepancy between the landlord and tenant evidence follows: The landlord produced an undated photo of dirt and mould on the lights over the kitchen sink at the end of the tenancy. The tenants’ also produced photos they took at the start of the tenancy showing mould and dirt on the same lights and surrounding ceiling area.
The tenants further say that the videos they took at the end of the tenancy do not show the same issues in end of tenancy photos produced by the landlord, calling into question the date of some images taken by the landlord. For example, one of the landlord’s undated photos of the front door, which the landlord said was probably taken on 16 September 2022, shows the front door mat. However, the tenant says this mat belonged to her and she removed it. It is not present in the tenant video of the front door area taken at 1.11pm on 15 September after the tenants had removed their belongings and cleaned the premises. Similarly, the tenants point out that the landlord’s photo of dirt on the backdoor area dated 15 September is not how they left it as shown in their video and photos taken that day. Also, while the landlord claimed the oven was dirty, the landlord‘s photo of the oven is taken after the landlord sprayed it with oven cleaner so does not show the dirt alleged present.
The landlord had some of the photos taken on her cell phone certified by a Justice of the Peace, after the JP sighted her phone to verify the photo dates. Of those, only an exterior paver photo is certified with a date taken of 15 September 2022 at 1:54pm, the last day of the tenancy. I am satisfied that the pavers were marked at the end of the tenancy, likely when the tenants moved their belongings. Pre-tenancy photos show that the pavers were not so marked.
I have carefully considered all the available evidence including the landlord’s pre-tenancy inspection, and the end of tenancy photos and images taken by the tenants and the landlord. I am satisfied that the tenants left the premises in the same condition than it was provided to them and, generally, in a reasonably clean and tidy condition. However, I accept that there were some marks on the exterior pavers, likely caused when they shifted out, and they should contribute to the cleaning cost. I award $50.
Missing cabinet lock: The landlord claims that the key to the cabinet in bedroom 2 was missing at the end of the tenancy, and the cabinet was left locked. She seeks the costs of unpicking and replacing the lock.
The tenants refer to the email they sent the landlord on 3 August 2021, in which they recorded that the cupboard in bedroom 2 was not closing properly and the key was not turning the lock. They requested that the landlord keep the key and say that she collected it the next day. Also, an end of tenancy video taken by the tenants shows that the cabinet door was open at the end of the tenancy. Therefore, I am persuaded that the cabinet was opening, and that the landlord was in possession of the key from early in the tenancy. The claim is dismissed.
Missing oven manual: The oven was replaced with a new oven in or about August 2021. The landlord says that the oven manual is missing and requires the tenants to replace it. The tenants say that the oven was replaced and when contractors installed the new oven, they removed the old oven and the packaging from the new oven. They never saw a manual and assumed all paperwork would have been handed to the landlord. I am not satisfied that the landlord can prove that the tenants removed the manual and are liable to replace it. In any event, manuals for appliances can usually be sourced online without great difficulty. The claim is dismissed.

Are the tenants 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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) 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.
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.
Where damage is proved and results in items requiring repairs/replacement, I must consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, the Tribunal must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The landlord claims that the tenants caused various damage during the tenancy for which she seeks compensation. I have considered each claim and I am not satisfied that any damage was caused during the tenancy or occurred during the tenancy other than by fair wear and tear. A summary of each claim and my findings follow.
Stained & worn lounge carpet: The landlord says that stains and excessive wear on the lounge carpet was caused during the tenancy, and she seeks the carpet replacement cost. The landlord thinks that the carpet was about 10 years old. She says that comparing the photos of the lounge carpet in the landlord’s pre-tenancy inspection with the photos taken at the end of the tenancy prove the claim. However, I find on the evidence, and in particular close-up photos taken by the tenants at the start of the tenancy, that the carpet was already well worn and marked. Even if damage was caused during the tenancy, the replacement cost would be fully depreciated, given that the carpet was at least 10 years old. In summary, the claim is not proved and is dismissed.
Torn drape in master bedroom: The landlord seeks compensation (the insurance excess) to replace the bedroom curtains because one of the curtains is torn at the top likely from something metallic. She did not notice the damage at the inspection with the tenants on the last day of the tenancy but thinks she noticed it when she went into the property the next day. The landlord says that the curtain was not damaged at the start of the tenancy as evidenced by the landlord’s pre-tenancy inspection. However, the pre-tenancy inspection photos are not close-up and therefore, it is difficult to see the curtain condition. The damage is not evident in the photos and videos taken by the tenants at the end of the tenancy either, but again, there are no close-up images of the top of the curtain.
The tenants say that at no time during the tenancy did they take the curtains down or wash them, and they did not cause the damage. They also refer to the fact that there was building work done in this room during the tenancy which included drilling two holes into the wall near the curtain and window area. Curtains were detached from the rails by the builders during this process. The landlord disputes that the builders could have caused the damage as she maintains that she was present the whole time. However, after considering the available evidence, I am not persuaded that the landlord has proved that the curtain damage was caused by the tenants during the tenancy, and potentially damage could have been caused by her builders. The claim is dismissed.
Faded and stretched drapes in living room: The landlord says the living room drapes were faded and stretched to the point where they were dragging on the floor at the end of the tenancy as shown in a video taken by the tenants at the end of the tenancy. She believes this was caused by the tenants washing the drapes during the tenancy and seeks compensation (the insurance excess) to replace the drapes.
The tenants deny washing the drapes. They say that this would not have been possible given the bulk of them. I also accept the tenant submission, that the video taken at the end of the tenancy does not show the alleged damage. The tenants also refer to the curtain quote provided by the landlord when the curtains were supplied in 2019 which specifically mentions risk of fading. The tenants contend that any fading or damage is simply a consequence of fair wear and tear. I accept the tenants’ submission and find that the landlord has not proved that the lounge drapes were damaged during the tenancy other than through fair wear and tear. The claim is dismissed.
Discolouration of laminate on kitchen wall: The landlord claims that the laminate on an area of the kitchen wall between the cupboard and the window above the sink is permanently discoloured due to mould from a build-up of moisture during the tenancy, likely because the tenants did not use the extractor fan and open windows. She says a comparison of the landlord’s pre-tenancy inspection photos and photos taken at the end of the tenancy prove her claim. However, the photos in the landlord’s pre-tenancy inspection are taken at a distance, while the end of tenancy photo is close-up. Therefore, it is not possible to see the area clearly and compare the photos.
The tenants referred to the close-up photos they took at the start of the tenancy showing dirt, mould spots and scuffs on the kitchen walls already. They also believe that the discoloured area was present at the start. They deny causing damage from not using the extractor or opening windows.
The landlord obtained a builder’s quote of almost $6,000 to remove and replace the laminate which also entails removal and replacement of the benchtop. When asked, the landlord said that her builder advised that he could not say what caused the laminate discolouration until the area was opened-up and investigated. Accordingly, in the absence of evidence from an appropriate expert as to the cause of the damage, the landlord has not proved that it was caused by the tenants during the tenancy and the claim must be dismissed.
Damaged curtain rail and accessories: The landlord claims that a curtain rail in the children’s bedroom was bent at one end and had a hole in the track preventing the curtain from flowing well. She also claims the curtains were dirty and ripped off the tracks in places. She seeks compensation for her time in taking down the curtain track, washing the curtains and installing a new track and curtain hooks. The landlord refers to a photo in the Healthy Homes Assessment report (obtained by the tenants and dated 29 July 2022) which shows that the curtains in the room were hanging off the track in places.
The tenants’ photos/videos taken at the start of the tenancy also show the curtains do not appear well hung and are dirty in places. The tenants end of tenancy images show the curtains in much the same condition. The tenant also noted on the landlord’s pre-tenancy inspection report that the curtains in this room were old, worn, had some stains and were loose from the rail. Accordingly, I am satisfied that the tenant left the curtains in the same condition as at the start of the tenancy and they are not liable for the landlord’s claim.
Damaged screen door lock: The landlord claims the exterior screen door lock mechanism was not working properly after the tenancy ended as it was not locking, and she claims the costs of having the lock replaced. However, I accept that the tenants reported problems with the locks on both front doors at the start of the tenancy. Given the location of the property near the beach, there was a suggestion that the locks were seized up due to salt spray. In any event, the landlord was unable to provide evidence as to the cause of the lock damage. In the absence of evidence of the cause, the landlord cannot prove that it was damaged by the tenants during the tenancy and the claim must be dismissed.
Scratches and marks on walls and kitchen cupboards: The landlord claims that the surfaces of several walls were scratched, and the kitchen cupboard paintwork was also scored because the tenant used an abrasive cleaner and/or scoring pad to wipe down the surfaces. The landlord seeks the costs of repainting the surfaces which she did herself. She says that a comparison of the landlord’s pre-tenancy inspection photos, and photos taken at the end of the tenancy prove her claim. However, it is difficult to see any marks in the end of tenancy photos the landlord referred to. Furthermore, photos in the pre- tenancy inspection were taken at a distance making it difficult to determine the condition.
The landlord first noted these issues after an inspection on 15 August 2022, one month before the tenancy ended. The inspection report records that there was wear and tear to the kitchen cupboard surfaces and they would need repainting. In follow up emails to the tenants on 16 August 2022, the landlord also recorded that there were marks and smearing on the walls in the hallway. She says the tenants advised that they washed the walls to clean off marks caused by their children with sugar soap, then advised it was just water. In the same email, the landlord advised the tenants that if marks did not come off with lukewarm water, they could purchase an interior paintwork cleaner from Resene. The landlord had not previously advised the tenants of any special instructions for cleaning the painted walls or cupboards.
The tenants maintain that they simply cleaned the walls and cupboards with some wipes that were advertised as suitable for painted surfaces. They say they did their best and believe the cupboards and walls were left in the same condition as at the start of the tenancy and refer to the end of tenancy images they recorded as proof. Furthermore, they refer to the comments they recorded on the landlord’s pre-tenancy inspection report and in follow up emails at the time in which they advised the landlord that the cupboards were only painted with a thin layer of paint which could easily wear off, and that the doors did not open and close smoothly and kept rubbing and scraping. The tenants’ pre-tenancy photos also show scoring and scuff marks on various walls and on kitchen cupboards.
After carefully reviewing the available evidence, the tenants left the walls and kitchen cupboards in much the same condition they were in at the start of the tenancy. I also accept the tenants’ argument that wear and tear on the kitchen cupboards may have occurred due to the paint finish being quite thin at the start. I accept that the tenants took reasonable steps to clean. They were not given any special instructions about cleaning until almost near the end of the tenancy and after they had already done some cleaning of the walls and cupboards. Therefore, even if I am wrong and their cleaning method caused some damage, I do not find that it was caused by them carelessly or intentionally. Therefore, the claim is dismissed.
Damaged toilet cistern: The landlord seeks to recover the costs of having a plumber fix the toilet cistern by replacing two valves on 27 September 2023. There was no evidence to establish that the cistern was damaged by the tenants during the tenancy or that replacement of the valves was caused other than through fair wear and tear. Furthermore, the tenants note that it was only discovered 12 days after the tenancy ended and after the landlord and various contractors had been working at the property and, likely, used the toilet. In the circumstances, I am not satisfied the landlord has proved the claim and it is dismissed.
Damage to bathroom laminate: This claim was withdrawn by the landlord.

Are the tenants liable to the landlord for loss of rent and exemplary damages?

Preventing access for carpet measure

A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections, repairs, and maintenance. See section 48(1) and (2) RTA. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48(4)(b) and Schedule 1A RTA.
The landlord claims that the tenants denied her access to the premises to complete a carpet measure as she wanted to install new carpet before the next tenancy which started on 27 September 2022. She says that if access had not been prevented, she would have been able to install the carpet and start the new tenancy 4 days earlier. As it was, the landlord was able to arrange for a carpet measure on 16 September (the day after the tenancy ended) and the carpet was installed on 24 September. The landlord referred me to emails between her and the tenants at the time in support of her claim. She seeks loss of rent (4 days) and exemplary damages from the tenants for failing to allow access.
The landlord and the tenants agreed to access for measuring the carpet on 8 September. However, on 7 September, the tenant advised the landlord that she had COVID-19 symptoms and her health provider had advised her to self- isolate for 7 days until symptoms abated and a negative test was returned. Therefore, she advised that the carpet measure would need to be re-scheduled, and she suggested the following Friday 16 September, after the tenancy ended. The landlord replied that she would like to reschedule to late afternoon on 14 September if the tenants COVID testing results were negative and noted it would only take 15 minutes. She asked the tenants to advise her of the testing results on 14 September. She followed up with her request by emails on 12 September and recorded that on 12 September she observed that furniture removers had attended the property which indicated that there was no longer a COVID issue. The tenants did not reply to these emails. However, in the hearing, the tenant said she spoke to the landlord and suggested the carpet measure be done on 15 th September because the tenants were moving out on the 14th. She noted that they had a lot of work to finish cleaning and shifting from the premises.
After carefully reviewing the evidence, I find that the tenants initial rescheduling of the carpet measure on 8 September was reasonable. Their reason for denying a request for access on 14 September and suggesting the next day was also reasonable given that they were in the middle of vacating the premises. Therefore, I am satisfied that the tenants have a reasonable excuse for postponing the landlord’s access to the premises. In any event, I am not persuaded that the landlord has proved that earlier access for the carpet measure (by 2 days to 14 September) would have enabled the carpet to be laid earlier and/or an earlier start date for the new tenancy. The claim is dismissed. Failure to report damages and HHS breaches
The landlord claims exemplary damages because she says that the tenants failed to report damage to the property and failed to advise her that the property did not comply with HHS. Tenants are required to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs under s40(1)(d) RTA. However, a breach of this provision is not classified as an “unlawful act” for which exemplary damages are a remedy.
In any event, I have dismissed the above damages claims against the tenants. The tenants argue that conditions at the premises were exacerbated by the landlord’s failure to comply with HHS (discussed later in this decision) for which they are not liable.
The landlord’s claim that the tenants are responsible for failing to advise the landlord that the premises did not comply with HHS is a nonsense. It is not the tenants’ responsibility to check whether a home complies with HHS. That duty sits firmly with the landlord. As it was, the tenants obtained an HHS assessment on 29 July 2022 and a copy was made available to the landlord shortly thereafter. The claim is dismissed. Miscellaneous claims
The landlord claims exemplary damages for various alleged breaches. However, the claims are either not breaches of the RTA and/or unlawful acts for which exemplary damages could be considered. The landlord says the tenants harassed her but there is no proof of that and, even had they done so, harassment by a tenant against a landlord is not a breach of the RTA. The landlord also says the tenants provided false information to the Tribunal and made unreasonable and retaliatory claims. There is no proof of false information. Given that the tenants have substantially succeeded in these proceedings, it follows that I find the claims they made are reasonable and justified. Finally, the landlord seeks exemplary damages for the tenants’ failure to pay rent. However, this is not an unlawful act under the RTA for which exemplary damages can be considered. These claims must all be dismissed. Has the landlord breached the Healthy Homes Standards in s45(1)(bb)?
[The tenant/s] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) RTA which requires compliance with the HHS. They claim the landlord has failed to comply with the HHS moisture/drainage, ventilation and draught stopping standards.
Compliance dates for the HHS vary depending on the tenancy but this tenancy must comply within 90 days of the tenancy start date after 1 July 2021. The tenancy started on 31 July 2021. Therefore, the date for compliance was 29 October 2021.
The HHS provides exemptions in relation to each standard in specific circumstances.
Breaching any of the HHS obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The moisture ingress and drainage standards require buildings comprising residential tenancies to a ground moisture barrier when there is an enclosed subfloor space.
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. An exemption applies for rooms lawfully built without qualifying windows. See regulations 21 and 22(1)(a) HHS which says: A habitable space need not comply with regulation 21 if,—(a) when the habitable space was built or converted into a habitable space, not having qualifying windows or doors that would comply with regulation 21, was lawful.”
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. Tenant case
The tenants produced a healthy homes assessment report dated 29 July 2022 prepared by Total Home Inspection Services (“the HHS report”) which found: a. Installation of a ground moisture barrier was required; b. In bedroom 2 the openable window did not meet the minimum requirements for ventilation; c. Bedroom 1 and Lounge required draught stopping to stop unreasonable draughts through the windows.
The items identified in the HHS report are all breaches of the HHS. which the landlord was required to comply with by 29 October 2021. These matters were not repaired before the tenancy ended on 15 September 2022.
The tenants say that the HHS breaches caused the whole house to be damp and bedroom 2 (with the green carpet), in particular. They say bedroom 2 was very cold and damp with condensation forming on the windows constantly. The windowsill was also discoloured and mouldy from the start of the tenancy and got worse. They had to frequently wipe down the windows and aired the room when they could. The tenants stopped using this room as a bedroom from late April 2022 when their daughter who had occupied the room started coughing. However, they did not complain to the landlord as they were already in dispute with the landlord over issues which had resulted in the previous proceedings, and they felt there was no point. They also believe that the landlord was aware of problems with the room because she told them there was dampness.
The tenants purchased a dehumidifier at the end of May 2022 to assist with the humidity in the house. They say that they had to empty the dehumidifier every day. They claim that because the house was damp it required a lot of heating and dehumidifier use which led to high power bills. They seek compensation for purchasing the dehumidifier, the high power bills, and being unable to use bedroom 2. They also seek exemplary damages for the HHS breaches. Landlord case
Ms Graf denies telling the tenants bedroom 2 was damp. She says that there is no evidence that the room was wet, and it was not reported to her by the tenants. She also says that the problems were more likely caused by the tenants failing to air and ventilate enough by opening windows and pulling curtains. She says that the tenants should have reported mould forming on the windowsill in bedroom 2. She also says the tenants continued to use bedroom 2 for an office.
Ms Graf provided evidence that the house alterations she completed for this dwelling were architecturally designed and engineered in 2017. She says that proper drainage was designed around the house as shown in the drainage plans and that there was no water pooling on the site.
In relation to a failure to install a ground moisture barrier, Ms Graf referred to a report from Energy Smart who she engaged to assess the home for insulation and, she says, a ground moisture barrier in June 2017. Following this assessment, the company installed underfloor insulation in May 2019 and provided a compliance certificate for the work in or about November 2019. The compliance certificate records the type of underfloor insulation installed. The certificate also has a section regarding a ground moisture barrier which has been filled out to record “no ground vapour barrier needed...” Ms Graf argues that she relied on this certificate as evidence that she received a professional opinion that it was not required. She contacted Energy Smart for their response to the HHS report finding that a ground moisture barrier is now required. Energy Smart advised in an email to Ms Graf on 28 September 2022 that: “Moisture barrier was not a requirement when we came out in 2019 to do an assessment—it came into legislation in 2021....” They also noted that the company was not doing Healthy Homes assessments in 2019.
Ms Graf produced a statement from an inspector at Porirua City Council dated 2 September 2022 stating that the windows specified in the consent for the 2017 house alterations were detailed as existing so do not form part of the building consent. He concluded “as long as the windows were not left any worse than they were after moving the house, they are deemed compliant.” Therefore, Ms Graf argues that the bedroom 2 window complied with building regulations in force when the house was constructed. Therefore, it would be exempt from the current ventilation standard by virtue of r22(1)(a) HHS.
In general, Ms Graf says she made every effort to provide a high-quality, compliant rental home. However, she acknowledged that she was not aware of the HHS requirements that came into force from 1 July 2021. She believed that because her alterations, started in 2017, were architecturally designed and professionally engineered, and she engaged Energy Smart to assess the property and install insulation in 2019, this gave her good reason to assume her house was compliant. Discussion and findings
The landlord’s failure to install a ground moisture barrier and carry out draught stopping is a breach of the HHS. In relation to ventilation, Ms Graf has raised an argument that the bedroom 2 window at the time of construction was lawful and may be exempt from the ventilation standard. I cannot be certain because there is no detailed evidence about when the house was constructed, the regulations then in place, and nor is there evidence that the condition of the window has remained the same. However, I am satisfied that this may be a credible argument and is a detail that the inspector completing the HHS report may not have been aware of. Therefore, I find that the tenants have not proved a breach of the ventilation standards on the balance of probabilities.
In relation to the HHS breaches proved, these are unlawful acts for which exemplary damages may be considered. 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 interest of the other party, and the public interest. See section 109(3) RTA.
An intentional act is a deliberate act, not a negligent or careless oversight. However, the District Court in Parton v Fifita TT 1815/00, DC Auckland,1/5/2001 has said that only the act must be intentional—i.e., that the person intended to do whatever it was they did or did not do. They do not have to realise that the act is unlawful. See also the District Court in TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 which stated: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
I am satisfied that the landlord acted intentionally. She acknowledged that she did not know the HHS standards that came into force from 1 July 2021. As a landlord, she is required to know her obligations and keep up to date with residential tenancy law. The HHS standards have been extensively and publicly written about for some years now prior to their introduction into law, and landlords have been given a lengthy lead-in time to comply. In those circumstances, there is little excuse for non-compliance because of ignorance about the standards. Ms Graf’s belief that the premises were compliant because her house alterations in 2017/2018 and installation of insulation in 2019 was completed by professionals, is not reasonable. Like all landlords, Ms Graf had a duty to ensure that the premises complied with the HHS from 1 July 2021 (and from 1 July 2019 for insulation). Applying the law in TMT New Zealand Ltd Ms Graf’s ignorance of the law is no defence and her failure to act must be considered intentional.
Considering the other factors for awarding exemplary damages in s109, I accept that the lack of a compliant ground moisture barrier and draught stopping affected the tenants, and it is also a matter of serious public interest that landlords comply with their obligations under the RTA. I have determined that exemplary damages should be awarded. The maximum amount that may be awarded for each breach is $7,200. However, I consider a sum of $2,000 for each standard that has been breached is justified to mark disapproval of the landlord’s conduct.
The tenants also seek compensation on the basis that the premises (as a result of the HHS breaches) were damp and required more heating and dehumidifier use than was reasonable. They seek reimbursement of $199 for the dehumidifier they purchased; a contribution of $1,432.50 for unnecessary power costs, and compensation in the form of a rent abatement of $1,540 for being unable to use bedroom 2 as a bedroom. The compensation for power includes a claim of $792.50 for the period from 31 January 2022 to the end of the tenancy because they say they had to use extra heating because of the landlord’s failure to complete maintenance work on the drainage and guttering system. However, the 2022 Tribunal order deals with all claims regarding drainage and guttering. Therefore, those matters cannot be re-litigated in these proceedings and that part of the claim must be dismissed.
I am satisfied that there is insufficient evidence of the tenants notifying the landlord that they could not use bedroom 2 as a bedroom. Also, there is no independent evidence from a suitable expert to prove that the room was uninhabitable as a bedroom. Usually, a landlord must be advised of any defects and given an opportunity to investigate and repair before being held liable for failing to do so. I am also not persuaded that the landlord had prior knowledge of any damp problems in bedroom 2. Therefore, I consider that the claim for compensation for being unable to use bedroom 2 must be dismissed.
In relation to the dehumidifier costs, I do not consider that the landlord should cover this cost when the tenants have kept the dehumidifier.
In relation to the power costs, the tenants presented information comparing the power costs they incurred in these premises with the power costs paid when renting in Auckland. I am not satisfied that this is a reasonable comparison because it does not factor in a different house and a different climate. In any event, I consider that the landlords breaches of the HHS are adequately dealt with by the award of exemplary damages.

Is the landlord responsible for damage to foam mats?

The tenants claim that some foam mats they had stored in the garage were damaged by the landlord’s workmen storing items in the garage without the knowledge or permission of the tenants. They seek the replacement costs of $150.
The tenants did not provide evidence, such as photos, showing the damage to the mats nor evidence of the replacement costs. Therefore, the claim is not proved and must be dismissed.

Has the landlord harassed the tenants?

A landlord tenant must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) RTA. 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 that the landlord has harassed them on several occasions. They say that she has made comments to them during the tenancy to learn how to speak English and in early September 2022 she came to the property and during an exchange swore at them. One of the tenants says that the landlord described her as dumb and stupid during the Tenancy Tribunal hearings in 2022. In a pre-hearing conference for these proceedings, one of the tenants says that the landlord called her a derogatory term in the corridor outside the hearing room.
Ms Graf generally denies the allegations and there is no independent corroborating evidence. In that regard, the Tribunal is left to determine one person’s word against another’s word. It is therefore impossible for me to make a finding and for that reason I must dismiss the claim.
The tenants have substantially succeeded in their claims and, therefore, they are entitled to suppression of their names and identifying details and to reimbursement of the filing fee.

Tenancy Tribunal case 4401261 — Exemplary damages at 48A Tireti Road, Titahi Bay, Porirua 5022

At a glance

Tenancy Tribunal case 4401261 — Exemplary damages at 48A Tireti Road, Titahi Bay, Porirua 5022

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

Are the tenants liable to the landlord for loss of rent and exemplary damages?

Is the landlord responsible for damage to foam mats?

Has the landlord harassed the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

Are the tenants liable to the landlord for loss of rent and exemplary damages?

Is the landlord responsible for damage to foam mats?

Has the landlord harassed the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions