What was Tenancy Tribunal case 4453922 about?

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

How much money was awarded in case 4453922?

Compensation: early termination and…: $2,000.00 awarded to tenant; Compensation: Loss Of Amenity: $1,750.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4453922?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4453922?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9796065-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4453922 about?

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

How much money was awarded in case 4453922?

Compensation: early termination and…: $2,000.00 awarded to tenant; Compensation: Loss Of Amenity: $1,750.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4453922?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4453922?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9796065-Tribunal_Order_Redacted.pdf.

4 Wentworth Park, Albany, Auckland 0632 Tenancy Tribunal Case 4453922 — State of repair

Claims and awards in Tenancy Tribunal application 4453922 — net $6,770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity	$1,750.00	loss of amenity
Compensation: early termination and moving costs	$2,000.00	early termination and moving costs
Exemplary damages: Failure to maintain	$3,000.00	Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,770.44
Total payable by Landlord to Tenant	$6,770.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and the property manager’s names and identifying details.
The parties to the application are the landlord and the tenant only. The property manager had late, peripheral, involvement in the matter and their property management agreement was terminated prior to the hearing.
Dennis & J Liu Trust must pay [The tenant/s] $6,770.44 immediately, made up as follows: DescriptionTenant Compensation: loss of amenity$1,750.00 Compensation: early termination and moving costs $2,000.00 Exemplary damages: Failure to maintain$3,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$6,770.44

Reasons

Both parties attended the hearing. The property manager attended the hearing, having been named a party. At the time the application was filed this was appropriate as they were the landlord’s agent at that point. However, their involvement in this matter was in the latter stages of the dispute, and their property management contract was terminated prior to the hearing. On that basis, I am satisfied that the property owner, referred to in this order as the “landlord” is the appropriate respondent.
The property manager has sought suppression of name. Given the factors above, I am satisfied this is appropriate.
The tenant seeks compensation for failure to maintain, loss of amenity and the costs associated with the early termination of the tenancy. Background
The tenancy started on 26 November 2021 and was fixed for one year.
The tenants have a special needs child, who is immunocompromised. Issues of dampness and mould are of greater concern as a result.
In February 2022 there was a significant leak. The moisture extended master bedroom, hallway, and some of the second bedroom, dining room and living room. all the affected areas were in the lower levels of the house. The tenants initially thought it was via a pipe in the ceiling, but having learned that is an overflow pipe, they suspected the shower was the cause. This was due to a wall beside the shower being soft and damp with mould behind it.
This was reported to the landlord via [Property Management Company 1]. The owner visited the property to inspect the damage. The landlord’s position is that the tenants did not tell him the leak was downstairs initially. However, there is an emailed from [Property Management Company 1] dated 24 February 2022 indicating that the shower downstairs was the cause of the leak.
In February 2022, the landlord sought to terminate the tenancy, but was advised by [Property Management Company 1] that it was not necessary to terminate a tenancy simply to replace the shower.
Further, emails from [Property Management Company 1] indicate that these issues were known prior to the start of the tenancy. While the landlord denies this, I do not accept his denials. The previous tenancy ended early, and this tenancy was a replacement for it. As soon as the issue was raised, the landlord sought to terminate the tenancy on notice. This is despite it being a fixed term tenancy. I am left with the distinct impression that the landlord preferred to re- tenant the property when the issue was raised, rather than actually dealing with it.
Various contractors visited the property, but none fully assessed the state of the bathroom.
During this period the landlord changed property manager, with [Property Management Company 2] taking over on 23 April 2022. During an introductory phone call, [Property Management Company 2] were advised of the leak issues, and photographs were emailed.
[Property Management Company 2] negotiated a $50 per week rent reduction from 28 April 2022.
On 2 May 2022 the landlord visited the property with [Property Management Company 2] to investigate. At that meeting the landlord wanted the tenant to vacate the premises for renovations to be completed. The tenants were reluctant as they had only recently moved, and the relocation was difficult due to their child’s needs, plus the financial costs of moving.
The landlord’s evidence is that the property was renovated following the end of the tenancy and the issues repaired. Failure to maintain and loss of amenity
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The landlord has failed to provide or maintain the premises in a reasonable state of repair. I am particularly concerned that [Property Management Company 1] appears to have advised the landlord of the issues prior to the tenancy and he did not repair them prior to the tenancy commencing. When the tenants raised the issues, nothing was done for several months to repair it.
I find they have committed an unlawful act.
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenant has been subject to living in a damp house with mould damp for a long time. This was particularly concerning given the tenant’s child’s health needs.
I consider the landlord must have acted intentionally in failing to repair this damage, given the advice from [Property Management Company 1] prior to the tenancy, then again in February 2022. The duration of the landlord’s failure to act is significant.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry, and safe condition.
I consider that the landlord’s actions in this instance are an egregious breach. The landlord deliberately re-tenanted the property despite knowing it needed repairs, then failed to undertake them when these tenants raised the issue themselves. I consider an award of exemplary damages is appropriate in the case, and I award $3,000.00.
Further, while the rent reduction negotiated by [Property Management Company 2] was a good start, I consider the tenants were entitled for a great reduction, from the point the extent of the leak was discovered in February 2022 to the end of the tenancy. The tenant sought $100 per week. I consider that amount appropriate in the circumstances. I award $1750.00 in compensation for lost amenity. This amount takes into account the $50 per week rent abatement from 28 April 2022. The early termination of the tenancy
The landlord sought to terminate the tenancy early. He said this was to complete repairs. I am somewhat cynical of this for the reasons set out above, but also because this option was raised immediately upon the leak being raised by the tenants. No efforts to investigate the issue or the necessary remedial work was undertaken prior to that option being suggested.
Further, this was a fixed term tenancy. A landlord cannot terminate a fixed tenancy on notice. Finally, even if a landlord could terminate on notice for repair works, the notice period in the Act is 90 days, not 28 days.
The landlord sought to argue that this was an agreed termination. While the tenants did agree to seek alternate accommodation, they were in the enviable position of either seeking new accommodation or having their daughter live in a damp house, which had the potential to compromise her health further. The landlord had, but virtue of his delays and lack of action, made it clear to them that he did not intend to repair the shower in a timely manner.
The landlord’s failure to repair the shower and his efforts to terminate the tenancy early instead are, in my view, a breach of the tenancy agreement and the Act. The tenants have suffered the costs of moving early as a result and I consider they are entitled to compensation for those breaches.
I award $2,000.00 compensation pursuant to s77(2)(n) of the Act for this breach, and the associated costs. Filing Fee
Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4453922 — net $6,770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity	$1,750.00	loss of amenity
Compensation: early termination and moving costs	$2,000.00	early termination and moving costs
Exemplary damages: Failure to maintain	$3,000.00	Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,770.44
Total payable by Landlord to Tenant	$6,770.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and the property manager’s names and identifying details.
The parties to the application are the landlord and the tenant only. The property manager had late, peripheral, involvement in the matter and their property management agreement was terminated prior to the hearing.
Dennis & J Liu Trust must pay [The tenant/s] $6,770.44 immediately, made up as follows: DescriptionTenant Compensation: loss of amenity$1,750.00 Compensation: early termination and moving costs $2,000.00 Exemplary damages: Failure to maintain$3,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$6,770.44

Reasons

Both parties attended the hearing. The property manager attended the hearing, having been named a party. At the time the application was filed this was appropriate as they were the landlord’s agent at that point. However, their involvement in this matter was in the latter stages of the dispute, and their property management contract was terminated prior to the hearing. On that basis, I am satisfied that the property owner, referred to in this order as the “landlord” is the appropriate respondent.
The property manager has sought suppression of name. Given the factors above, I am satisfied this is appropriate.
The tenant seeks compensation for failure to maintain, loss of amenity and the costs associated with the early termination of the tenancy. Background
The tenancy started on 26 November 2021 and was fixed for one year.
The tenants have a special needs child, who is immunocompromised. Issues of dampness and mould are of greater concern as a result.
In February 2022 there was a significant leak. The moisture extended master bedroom, hallway, and some of the second bedroom, dining room and living room. all the affected areas were in the lower levels of the house. The tenants initially thought it was via a pipe in the ceiling, but having learned that is an overflow pipe, they suspected the shower was the cause. This was due to a wall beside the shower being soft and damp with mould behind it.
This was reported to the landlord via [Property Management Company 1]. The owner visited the property to inspect the damage. The landlord’s position is that the tenants did not tell him the leak was downstairs initially. However, there is an emailed from [Property Management Company 1] dated 24 February 2022 indicating that the shower downstairs was the cause of the leak.
In February 2022, the landlord sought to terminate the tenancy, but was advised by [Property Management Company 1] that it was not necessary to terminate a tenancy simply to replace the shower.
Further, emails from [Property Management Company 1] indicate that these issues were known prior to the start of the tenancy. While the landlord denies this, I do not accept his denials. The previous tenancy ended early, and this tenancy was a replacement for it. As soon as the issue was raised, the landlord sought to terminate the tenancy on notice. This is despite it being a fixed term tenancy. I am left with the distinct impression that the landlord preferred to re- tenant the property when the issue was raised, rather than actually dealing with it.
Various contractors visited the property, but none fully assessed the state of the bathroom.
During this period the landlord changed property manager, with [Property Management Company 2] taking over on 23 April 2022. During an introductory phone call, [Property Management Company 2] were advised of the leak issues, and photographs were emailed.
[Property Management Company 2] negotiated a $50 per week rent reduction from 28 April 2022.
On 2 May 2022 the landlord visited the property with [Property Management Company 2] to investigate. At that meeting the landlord wanted the tenant to vacate the premises for renovations to be completed. The tenants were reluctant as they had only recently moved, and the relocation was difficult due to their child’s needs, plus the financial costs of moving.
The landlord’s evidence is that the property was renovated following the end of the tenancy and the issues repaired. Failure to maintain and loss of amenity
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The landlord has failed to provide or maintain the premises in a reasonable state of repair. I am particularly concerned that [Property Management Company 1] appears to have advised the landlord of the issues prior to the tenancy and he did not repair them prior to the tenancy commencing. When the tenants raised the issues, nothing was done for several months to repair it.
I find they have committed an unlawful act.
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenant has been subject to living in a damp house with mould damp for a long time. This was particularly concerning given the tenant’s child’s health needs.
I consider the landlord must have acted intentionally in failing to repair this damage, given the advice from [Property Management Company 1] prior to the tenancy, then again in February 2022. The duration of the landlord’s failure to act is significant.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry, and safe condition.
I consider that the landlord’s actions in this instance are an egregious breach. The landlord deliberately re-tenanted the property despite knowing it needed repairs, then failed to undertake them when these tenants raised the issue themselves. I consider an award of exemplary damages is appropriate in the case, and I award $3,000.00.
Further, while the rent reduction negotiated by [Property Management Company 2] was a good start, I consider the tenants were entitled for a great reduction, from the point the extent of the leak was discovered in February 2022 to the end of the tenancy. The tenant sought $100 per week. I consider that amount appropriate in the circumstances. I award $1750.00 in compensation for lost amenity. This amount takes into account the $50 per week rent abatement from 28 April 2022. The early termination of the tenancy
The landlord sought to terminate the tenancy early. He said this was to complete repairs. I am somewhat cynical of this for the reasons set out above, but also because this option was raised immediately upon the leak being raised by the tenants. No efforts to investigate the issue or the necessary remedial work was undertaken prior to that option being suggested.
Further, this was a fixed term tenancy. A landlord cannot terminate a fixed tenancy on notice. Finally, even if a landlord could terminate on notice for repair works, the notice period in the Act is 90 days, not 28 days.
The landlord sought to argue that this was an agreed termination. While the tenants did agree to seek alternate accommodation, they were in the enviable position of either seeking new accommodation or having their daughter live in a damp house, which had the potential to compromise her health further. The landlord had, but virtue of his delays and lack of action, made it clear to them that he did not intend to repair the shower in a timely manner.
The landlord’s failure to repair the shower and his efforts to terminate the tenancy early instead are, in my view, a breach of the tenancy agreement and the Act. The tenants have suffered the costs of moving early as a result and I consider they are entitled to compensation for those breaches.
I award $2,000.00 compensation pursuant to s77(2)(n) of the Act for this breach, and the associated costs. Filing Fee
Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4453922 — State of repair at 4 Wentworth Park, Albany, Auckland 0632

At a glance

Tenancy Tribunal case 4453922 — State of repair at 4 Wentworth Park, Albany, Auckland 0632

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions