Published tribunal order
Tenancy Tribunal case 4405125 — Exemplary damages at 477 Great South Road, Otahuhu, Auckland 1062
Decided 14 Aug 2023 · Published 14 Aug 2023 · Application 4405125
- Exemplary damages
Party names are redacted in the official published order.
Order
- [The tenant/s]’s name and identifying details must not be published.
- This decision must be read in line with the original decision of 24 December 2022 in respect of the claims that were determined. The figures in the table below reflect the updated claims heard today replace the amounts ordered on 24 December 2022.
- Hrfs Developments Limited must pay [The tenant/s] $365.14 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing. [The tenant/s] and Mr Ardeh, the landlord.
- [The tenant/s] produced [the tenant’s partner] as a witness. Mr Ardeh produced [the witness] as a witness. Background
- On 28 March 2023, a rehearing was granted to the landlord of [the tenant/s]’s claim that the landlord breached the Healthy Homes Standards, in particular the Insulation and Draught Stopping Standards.
- The Tribunal’s orders of 24 December 2022 for exemplary damages and compensation against the landlord were set aside.
- The Tribunal’s orders in favour of the landlord were stayed pending the Tribunal’s rehearing decision.
- [The tenant/s] was directed to return the $1500.00 bond money to the Bond Centre.
- The tenancy agreement appears to have been entered into on 2 December 2022. The tenancy began on 15 December 2022 and ended on 7 September 2023.
- The Tribunal has only been provided with 3 pages from the agreement. The tenant says these were the 3 pages she considered relevant to produce.
- The landlord was given an opportunity to find the full agreement but was not able to produce a full tenancy agreement during the course of the hearing. I advised both parties a decision would be made with the information presented to the Tribunal.
- I note there is no signed Healthy Homes Statement provided by the landlord though there is a signature on the final page of the agreement.
- [The tenant/s] indicated there was some confusion with Tenancy Services who apparently advised her that there was no direction from the Tribunal about the bond being returned to the Bond Centre. They were not sure what to do about the direction from the Tribunal and it caused her confusion.
- I have therefore taken into account the fact the bond has been refunded to [The tenant/s]. Insulation
- [The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
- The tenant says there was inadequate or no insulation.
- The tenant says lack of insulation made the home cold and she had to spend more on heating the premises.
- The landlord says he did insulate the premises prior to the tenant entering the premises. He provided 2 statements, one from a [Renovator 1] and another from [Renovator 2] outlining that they were involved with the renovation of the premises. His witness [the witness] confirmed he was part of the ceiling insulation crew which installed the ceiling insulation.
- I am satisfied from hearing these witnesses that the insulation was carried out at the start of the tenancy.
- The landlord said that due to leaks after heavy rain in March 2022, the roof had to be re-roofed. The landlord says at this time he removed damaged insulation and put in new insulation.
- The landlord provided a Healthy Homes Compliance Certificate issued 28 September 2022. This was issued after the tenancy ended.
- I am satisfied after considering the letters provided by the landlord about insulation being installed in 2021 and after hearing from [the witness] that the landlord did insulate most of the premises adequately during the tenancy.
- The claim for breach of Healthy Homes Standard, for lack of insulation is dismissed. Draught Stopping Standard
- [The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.
- 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.
- 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.
- 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).
- The tenant said there was wind coming through gaps in the windows, in particular through a hallway door that linked the tenancy to the landlord’s business. She said that the air coming through the hallway “whistled” and there were two occasions she smelt burning wire and went to see the landlord’s wife about it.
- The landlord again referred to the Healthy Homes Report as noted in 23 above. As stated earlier, this report post-dated the tenancy. The report states the home met the draught stopping standards. However, the standard can only be looked at as met after the tenancy had ended. There is no evidence provided by the landlord to suggest the tenant was not frank in her claim.
- In this situation, after hearing both parties and the witness [the tenant’s partner], I am satisfied the tenant lived in an older premises and described the premises in a clear and frank manner. She spoke about the older windows, with gaps causing air to come through. I am satisfied of her clear description of the air whistling through the hallway door/ceiling cavity.
- There appears to have been an empty cavity between the wall in the stairwell and the underside of the roof which is also likely to cause draughts. It is not clear why there is no proper ceiling in the stairwell.
- This is an old property which has had problems from the beginning, leaks being a big issue requiring re-roofing in March 2022, then leaks in the kitchen in June 2022 from a gap due to an old chimney that required removal and the area above the kitchen re-insulating.
- The landlord should have been aware of his obligations to meet the Healthy Homes Standards as a landlord at the start of the tenancy. This is an older premises, but this is no excuse not to be compliant. Ignorance of the law is also not an excuse.
- I find Hrfs Developments Limited 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 interest of the other party, and the public interest. See section 109(3) RTA.
- Considering those factors, I have determined that the effect that the premises did not meet the draught stopping standards at the tenancy commencing meant the property was cooler and draughtier than it should have been. The interests of the tenant favour an award of exemplary damages. It is in the public interest to ensure other landlords are aware of their obligations.
- I consider an award of $1800.00 being fair award for exemplary damages for the claim. Compensation
- The tenant also sought compensation for loss of amenity caused by lack of insulation and draughts. She sought compensation for having to spend more on heating the premises.
- The landlord started he would have noticed if more power was being used in the premises and he did not notice this.
- As indicated, this claim can only be on the basis of my finding that there was a breach of the draught stopping standard, I consider $600.00 being fair compensation for the need for more heating in the winter months from 1 April 2022 to 7 September 2022. Suppression
- The tenant is seeking suppression of identifying details in any publication of this order.
- If a party has wholly or substantially succeeded in the proceedings the Tribunal must make the order unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. Section 95A Residential Tenancies Act 1986.
- The tenant has been partially successful in these proceedings. Having considered the factors in this case the Tribunal grants name suppression of the tenant as sought.