What was the outcome of Tenancy Tribunal case 4434282?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4434282?

Compensation: $1,000.00 awarded to tenant; Compensation: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4434282?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4434282?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9327851-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4434282?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4434282?

Compensation: $1,000.00 awarded to tenant; Compensation: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4434282?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4434282?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9327851-Tribunal_Order.pdf.

Unit/Flat 31, 17 Swansea Road, Flaxmere, Hastings 4120 Tenancy Tribunal Case 4434282 — State of repair

Claims and awards in Tenancy Tribunal application 4434282 — net $2,270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – failure to maintain the premises	$1,000.00	Compensation – failure to maintain the premises
Exemplary damages – unlawful entry	$750.00	Exemplary damages – unlawful entry
Compensation – breach of quiet enjoyment	$500.00	Compensation – breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,270.44
Total payable by Landlord to Tenant	$2,270.44

Claims and awards in Tenancy Tribunal application 4434282 — net $2,270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – failure to maintain the premises	$1,000.00	Compensation – failure to maintain the premises
Exemplary damages – unlawful entry	$750.00	Exemplary damages – unlawful entry
Compensation – breach of quiet enjoyment	$500.00	Compensation – breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,270.44
Total payable by Landlord to Tenant	$2,270.44

Order

No suppression orders apply around publication of this decision.
Hastings District Council must pay Raewyn Duff $2,270.44 immediately.

Reasons

Whilst the tenant has filed an application against the landlord for various breaches of the Residential Tenancies Act 1986 (RTA), I am pleased to confirm at the outset that the overall narrative in this particular case ends well, with the tenant being relocated to a different premises and the parties maintaining a positive relationship despite the matter before me today.
The landlord is a social housing provider. At some stage during the tenancy, the landlord subcontracted the management of its social housing to a third party. The landlord uses a third-party contractor to carry out its facility management and electrical services.
The tenant’s premises are located amongst a 63-unit complex in Hastings as shown in the image below.
Both parties attended the hearing. The tenant attended with a support person and three employee/contractor representatives attended on behalf of the landlord.
The tenant filed an application making the following claims: a. The landlord breached the Healthy Homes Standards (HHS) in relation to heating and insulation; b. The landlord failed to provide and maintain the premises in a reasonable state of repair; c. The landlord unlawfully entered the premises without consent or notice; and d. The landlord breached the tenant’s right to quiet enjoyment.
The tenant acknowledged at the start of the hearing the HHS do not apply to the tenancy because the tenancy began before 1 July 2021 and that it was not physically possible to further insulate the premises. Accordingly, the tenant withdrew those claims relating to HHS and insulation.
The tenant seeks compensation and exemplary damages for the claims set out above. The tenant also sought an apology from the landlord for the above alleged breaches, though the Tribunal is unable to order apologies to be made. Relevant legal considerations
I begin by noting that with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.
The Tribunal requires the applicant to establish their claim on the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again, if the claim is not established to the balance of probability, it must be dismissed Procedural note
The landlord attended the hearing with a bundle of new documents. I considered that it was appropriate to adjourn the hearing to provide the tenant with a fair opportunity to consider those documents and prepare a response to them. Accordingly, the tenant was offered an adjournment to another hearing date; or an adjournment for a brief period at the start of the hearing to consider the documentation. The tenant considered the options available, and the hearing was adjourned for 30 minutes.

Has the landlord maintained the premises in a reasonable state of repair?

The tenant’s evidence

The tenants position is that the premises were cold, damp and mouldy and that the landlord failed to address the issues despite repeated requests. The tenant referred to several issues, including the following: a. there was mould throughout the premises; b. the wood around the windows was rotting and the paint was peeling away; c. the wood on the kitchen cupboards was swelling up and dropping of the hinges; d. the walls were damp and one of the bedroom walls iced over during the winter months; e. when it rained, she could hear water dripping in the walls which would keep her awake and night; f. she slept in the lounge because she felt it was too cold to sleep in the bedroom.
The tenant claims to have contacted the landlord repeatedly regarding her concerns from her second winter in the premises (July 2022) until she was relocated in May 2023.
The tenant issued a 14-day notice on 4 October 2022 to remedy the rotting windows and the wet wall in her bedroom. The tenant felt that landlord’s response to the 14-day notice, which was to sand down and repaint the windows was not sufficient. The tenant also contacted the Hastings Mayor and Stuff News.
The tenant is aware that in November 2022, the landlord contracted an independent building inspector to attend the premises, but the resulting report was not shared with the tenant, despite requests.
The tenant provided various photographs, email correspondence and extracts from a Healthy Homes Compliance report dated 22 March 2023 with her application.
The tenant claims that the landlord ignored her emails and that nothing was done to remedy the issues that she raised. She claims that her quality of life suffered, that she was constantly tired from the chronic sleep deprivation due to the cold, damp and mouldy conditions. The tenant believes that there was likely black mould behind the walls. The tenant considers the unit to be a slum. The landlord’s evidence
The landlord’s evidence was somewhat difficult to follow likely due to the fact that the individual leading the presentation of the landlord’s evidence was relatively new in the role and not an employee of the landlord at the time when the issues arose.
The landlord initially referred to the HHS assessment completed in March 2023 and acknowledged that the report noted the electric heaters did not meet the required standard and the drainage and guttering required repair.
The landlord provided photographs of the premises at the commencement of the tenancy and the date that the tenant moved out as evidence that there was no mould present at the premises.
The landlord confirmed that the tenant had repeatedly raised issues and claimed that each time the landlord would respond and take action. The landlord referred to its bundle of evidence including a summary of correspondence with the tenant, a large number of emails between the tenant and landlord, work orders issued to the landlord’s third-party contractor and various emails with the landlord’s third-party contractors.
Following further questioning at the hearing, the landlord confirmed that on 10 October 2022 (following the 14-day notice) the landlord’s third-party contractor completed an inspection of the property and it was concluded that the window seals would require repairs and repainting. The landlord referred to several other attendances at the premises and the conclusions following the moisture testing completed at the premises on two separate occasions (11 November 2022 and 11 January 2023) indicating acceptable moisture levels.
Of particular note, the landlord submitted in their bundle of evidence an email dated 11 November 2023 from an independent building inspector in which it was recommended that the roof of the bathroom be remedied as the area could be letting in the rain and causing damage to the wall framing. When asked whether this work had been completed the landlord advised that it had not.
The landlord confirmed that the tenant has been relocated and the premises remained vacant because substantial works with the guttering and roof were required. When later questioned on the same point, the landlord suggested that the tenant had in fact been relocated because it had become quite noticeable that the situation was having an impact on the tenant’s mental health. The law
Under section 45 of the RTA a landlord must “provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises”. 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) and Schedule 1A RTA.
I note that the obligation of a landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 1 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 2 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 3 Findings
I am satisfied that the landlord was aware of the tenant’s concerns described above. There is evidence of multiple emails from the tenant to the landlord throughout 2022/2023 and the 14-day notice was issued in October 2022. I am equally satisfied that it is clear that the landlord was responsive to the tenant’s repeated concerns and did not “sit on their hands”.
However, I find that the landlord failed to adequately respond to the tenant’s concerns set out in the 14-day notice. Firstly, I note that the landlord appears to have initially sent an electrician to the tenant’s premises to consider the issues raised by the tenant in the 14-day notice, which was regarding the rotting windows and the wet wall in her bedroom. It is not surprising therefore that the recommendations to address the tenant’s concerns with regard to the windows and walls were electrical remedial work e.g., moving electrical switches.
Secondly, as I have discussed above, the landlord’s obligation is to fix issues that are reported by the tenant. Here, there is evidence that this did not happen. The landlord has provided clear evidence in its own bundle of evidence that an independent building inspector recommended remedial action in November 2022 regarding a potential water leak and resulting damage to the walls. This indicates that the tenant’s concerns regarding moisture, dampness and cold were likely warranted. 1 DC Auckland CIV 2005 004 1762, at [28] 2 Section 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 3 Collins v Professionals Hutt City Ltd DC Wellington Civ 2009 space 085 space 1431, at [15] , and see further authorities discussed in “Residential tenancy law in New Zealand”, Stewart Benson, 2018, at page 132
There is no evidence before me that suggests that the independent building inspector’s recommendation was further investigated or addressed.
The tenant remained in the premises for a further seven (7) months and the premises have remained vacant for a further three (3) months, partly due to, using the landlord’s oral evidence, the need for substantial works to the roof. It is concerning that the independent building inspector’s recommendations appear to have been ignored or overlooked. It is even further concerning that in March 2023, the landlord states in an email to the tenant regarding her concerns that the landlord was waiting for the outcome of the Tribunal hearing to get clarity. If a building inspector recommends remedying a potential leak in a home, it is not acceptable for a landlord to wait until a tenancy tribunal hearing to investigate the issue further.
I do find on the evidence that the landlord failed to address the tenant’s 14-day notice in a reasonable timeframe, or at all, in the case of the recommendations of the independent building inspector. The landlord is therefore in breach of the obligations under s45(1)(b) RTA to maintain the premises.
As a result of the breach, I find that the tenant suffered a loss of amenity having to deal with cold and dampness likely resulting from a water leak. Compensation is appropriate for the loss of amenity suffered by the tenant from the date the 14-day notice was issued to the date the tenant was relocated. I award $1,000.00, which I consider is fair and reasonable.
A breach of s45(1)(b) of the RTA is an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
It is more difficult to find that the landlord acted intentionally in this instance. The landlord certainly took steps to address the issues raised by the tenant, albeit not enough. The landlord did agree to sand down and repaint the windowsills, but the tenant was frustrated and refused the contractor entry. Generally, the landlord was responsive to issues raised by the tenant. To that extent, I do not find the requisite intention is present to consider an award of exemplary damages. I also consider the award of compensation is the appropriate remedy. Did the landlord unlawfully enter the tenant’s premises?
The tenant claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant says that the landlord’s contractors regularly entered the premises without giving any or sufficient notice and specifically referred to an occasion where the landlord’s electrician just turned up one day to check the heater having given no notice at all. The tenant felt particularly upset about the situation due to the landlord’s electrician allegedly telling her that there was nothing wrong with the heater and she did not know how to use it. The tenant referred to other landlord’s other contractors (plumbers and glaziers) attending with less than an hours’ notice.
The landlord says that they are conscious of their obligation to give tenant’s adequate notice before entering the premises. They say that their third-party contractors are similarly aware of the landlord’s obligations and that when the tenant brought the issue to their attention, they addressed it. The evidence provided by the landlord shows that the tenant’s email was simply forwarded on to the contractor but that no apology was made to the tenant.
I find that this was a breach of section 48 of the RTA and an intentionally unlawful act. The landlord should have robust procedures in place to ensure that its third-party contractor’s provide the required statutory notice. Generally, I find examples of the landlord’s contractor’s behaviour towards the tenant to be casual and unprofessional. The effect on the tenant was to cause them concern and suspicion as to when else the landlord’s contractor might be attending. They lost faith in the landlord and their relationship deteriorated.
Having considered all of the above factors and that it is clearly in the public interest for landlords to ensure their contractors do not unnecessarily evade the privacy of tenants, I award $750 exemplary damages, taking into account the fact that the landlord took some steps to correct the error, albeit without communicating that to the tenant. Did the landlord breach the tenant’s right to quiet enjoyment?
The tenant also considers that the landlord has harassed her which is a breach of section 38(2) of the RTA which states that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
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. These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
The tenant claims that on 8 February 2023, one of the landlord’s contractors attended the premises to check the extractor fan and then proceeded to yell at her, called her ungrateful and told her to move out. The tenant states that he had really upset her and made her cry. Of note, the landlord has attempted to rely on the same contractor’s report to rebut the tenant’s claim regarding the moisture levels in the premises.
The landlord reiterated the point that they are aware of the legislative requirements to not interfere with the tenant’s quiet enjoyment of the premises, that they have a strict complaints procedure and that there was an internal investigation of the matter. They say that they spoke with the contractor at length and that it was apparent that both parties were at fault. The landlord claims that they received an apology from the contractor, though this was not extended to the tenant.
Having considered the evidence, I am satisfied that the landlord’s contractor has breached the tenant’s quiet enjoyment of the premises. I accept that the landlord’s contractor’s actions have caused distress for the tenant and that she complained about it to the landlord but received no response. I consider that the interaction was disrespectful and inappropriate. I find that the tenant is entitled to general damages for their stress and inconvenience suffered and loss of privacy and quiet enjoyment of the premises when the landlord’s contractor came to the premises. I consider $500.00 appropriate in the circumstances.
In this case, I do not find that there was any particular pattern of behaviour towards the tenant. As this was a single act of interference, this was not “harassment” of the tenant, and there is no basis for an award of exemplary damages. Privacy matters
The tenant raised some concerns that the landlord might have shared her personal information with Work and Income New Zealand. This is not a matter the Tribunal has jurisdiction to consider and is a matter that the tenant would need to raise with the Office of the Privacy Commissioner. 51. Suppression
Section 95A of the RTA states regarding suppression orders that 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 interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord sought a suppression order. The landlord has not been substantially or wholly successful and I do not find any grounds or consider it appropriate for the Tribunal to apply any initiative to order suppression of the landlord’s name.
The tenant did not seek a suppression order. Filing fee
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee. T Lee-Lewis 03 September 2023

Tenancy Tribunal case 4434282 — State of repair at Unit/Flat 31, 17 Swansea Road, Flaxmere, Hastings 4120

At a glance

Tenancy Tribunal case 4434282 — State of repair at Unit/Flat 31, 17 Swansea Road, Flaxmere, Hastings 4120

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord maintained the premises in a reasonable state of repair?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord maintained the premises in a reasonable state of repair?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions