What was Tenancy Tribunal case 4462520 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 4462520?

Compensation: Extractor Fan: $1,080.00 awarded to tenant; Compensation: Water Leak: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

Where can I read the official tribunal order for case 4462520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9249817-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4462520 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 4462520?

Compensation: Extractor Fan: $1,080.00 awarded to tenant; Compensation: Water Leak: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

Where can I read the official tribunal order for case 4462520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9249817-Tribunal_Order_Redacted.pdf.

88 Stapleford Crescent, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4462520 — Leaks

Claims and awards in Tenancy Tribunal application 4462520. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Water leak	$750.00	Water leak
Compensation: Extractor fan	$1,080.00	Extractor fan
Filing fee reimbursement	$20.44	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4462520. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Water leak	$750.00	Water leak
Compensation: Extractor fan	$1,080.00	Extractor fan
Filing fee reimbursement	$20.44	Filing fee reimbursement

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants names and identifying details.
Rentex Limited As Agent For Weiwei Zheng must pay [The tenant/s] $1,850.44 immediately, calculated as shown in table below. DescriptionTenant Compensation: Water leak$750.00 Compensation: Extractor fan$1,080.00 Filing fee reimbursement$20.44 Total award$1,850.44

Reasons

The Tribunal must consider an Application filed by the tenants against the landlord. The tenants seek compensation by way of a 50% rent reduction, because of a leak and a problem with an extractor fan, which the tenants report causing dampness and mould inside the house, with resulting health impacts for the occupants.
The tenancy commenced on 15 May 2021, it was a one year fixed term tenancy ending on 14 May 2022. However the Tenancy continue beyond that fixed term in date, with the tenancy ending on 1 December 2022.
Having heard from the landlord at the hearing, the evidence is that there was a history of water ingress at the premises. The landlord explained that one or some of the walls are backfilled, and some water would seep through the walls as a result. At the hearing the landlord showed a photograph taken of a rumpus room in May 2021, that is around the time the tenants moved in, which showed some abnormalities with a painted concrete block wall, which I accept was likely the result of water penetrating the concrete block causing paint to peal.
There is no evidence before the Tribunal which argues for any impact of moisture ingress prior to August 2021. In that regard the tenants have not reported any issued prior to August 2021, and furthermore the photographs of the premises at the start of the tenancy only show some defects on the block paint work, there is no evidence of mould issues.
Again these tenants moved into the premises in May 2021. The first reference to the tenants raising issues with water ingress was during the Covid lockdown, when the tenants reported a small water leak on 31 August 2021. Then subsequently on 24 September 2021, the tenants reported a more substantial water leak, and provided the landlord a video of that.
As I understand matters, the landlord did attend the premises, and trenched around the backfilled wall. The landlord stated at the hearing that the tenants did not report any further water ingress issues, and to that extent the landlord believed the problem had been resolved with the trenching they had performed.
There was also an issue with a faulty extractor fan which was reported to the landlord in March 2022.
The tenancy ended on 1 December 2022, and the tenants filed this application with the Tribunal on 13 December 2022. The tenants application was for a 50% refund of rent, to the sum of $26,635.00.
A hearing was convened in the [Event location suppressed] on 2 August 2023, with both tenants were in attendance, as was the landlords representative and agent. The parties were supported by a [redacted] interpreter in the hearing room when needed.

TENANTS CASE

The tenants say that during the course of the tenancy, the premises would leak, and that has caused the premises to become cold and damp. The tenants say that this was raised with the landlord on 31 August. The leak was coming from an area around the floor / wall junction in the laundry. This was during the COVID lockdown, and the leak was modest. However a further report was made on 24 September 2021 which was a bigger leak. At the hearing the tenant showed me a video on his cell phone which confirmed a water leak under the skirting board on the floor, which the tenants say was in the laundry. The tenants say the leak would spread to other rooms in the premises.
The tenants also state that there were issued with the extractor fan, which would not suck air from the kitchen, and the landlord would send someone to check the system, but they did not proceed to fix it. The tenants state that because of the fault, they needed to open doors and windows for ventilation.
As a result there was mould develop in multiple rooms including the bedrooms and dining rooms. This required regular cleaning, and there have been health problems for their family.
The tenants consider the house was illegal to rent.
[Tenant 1] advised that her husband now has high blood pressure because of the issue with the extractor fan not working which will now affect him for his life.
The tenants claim a 50% rent reimbursement to compensate.
In response to the landlords submissions and evidence, I asked the tenants if they had raised with the landlord after September 2021, that there was a continuing leak. The tenants responded that it was not their problem to raise this with the landlord, as it would be the landlord who should have fixed it and provided a healthy dwelling.
The tenants stated that other tenants had moved out of the premises because it was leaking.
The tenants disputed that the rumpus room was used as a bedroom, they only used it for a storage area.
The tenants considered that the offer of $30.00 per week for being unable to use the extractor fan was too low.

LANDLORDS CASE

The landlord says that on 31 August 2021, during the COVID lockdowns, the tenants first raised the leak. The landlord also confirms getting the September 2021 communication from the tenants.
The landlord explained that the house is an older house, and the rumpus room, which has a backfilled wall, does not have adequate waterproofing. As a result water will leak into the house. The best the landlord could do in the circumstances is to waterproof the inside of the house.
The landlord produced invoices at the hearing showing that work had been undertaken prior to the tenancy with waterproofing, and during the tenancy with digging a trench.
The landlord considers that issues with mould would be the result of how the tenants were living in the premises. The landlord referred to an inspection report / photographs from a routine inspection on 13 August 2021 before the tenant first raised the leak with the landlord, which supported that they premises were not keeping the premises clean and tidy, and that they would dry wet clothing in the dwelling.
The landlord further states that the tenants has not raised leaking again after September 2021, and therefore the landlord believed that the leak had been fixed in August 2021 with the landlords work digging the trench.
The landlord also referred to a photograph from 12 May 2021, which showed some of the damage to a block wall, to be pre-existing the leak reported by the tenants.
In relation to the extractor fan, the landlord accepts that this was not addressed as it should have been. The landlord offered $30.00 per week rent reduction between 25 March 2022 until 1 December 2022 when the tenancy ended. 1
The landlord considers that it would be unlikely that the issues with the extractor fan would cause high blood pressure problems, and submits that is not supported in the medical records.
The landlord notes that the fact that the tenants were using the rumpus room as a bedroom, does not support that the room was unusable.

ANALYSIS

The tenants claim to the Tribunal is on the basis that the premises have not been properly maintained. The tenants have claimed exemplary damages and compensation for that.
The Residential Tenancies Act 1986 (RTA) applies, that is the primary legislation in New Zealand which sets out the obligations between tenants and landlords, with rental properties.
Section 45 of the RTA sets out the landlords responsibilities, and that includes that the landlord is required to maintain the premises during the course of the tenancy, as well as complying with the healthy home standards, and any obligations in relation to buildings health and safety.
Section 45 of the RTA sets out the tenants responsibilities, and that includes an obligation to notify the landlord, as soon as possible after the discovery of the need for repairs to the premises.
The RTA also provides a mechanism for tenants to raise work required at the premises more formally with the landlord, and if the landlord does not comply with that notice, to escalate the matter to the Tenancy Tribunal for orders. And particular the tenants are able to provide the landlord with a breach notice (a 14 1 That is some 36 weeks, which would be compensation of $1,080.00. day notice), and if work is not completed in a timely way, the tenants can seek a work order from the Tenancy Tribunal which would require the landlord to remedy the breach, or they could seek termination of the tenancy.
That is consistent with section 49 which places a duty to mitigate on the parties, where that provision holds: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
Returning now to the specific circumstances of this case.
There is no dispute between the parties that the premises had a water leak. It is clear that this was a pre-existing problem before these tenants moved in. However, there is in my view insufficient evidence to show that this water leak was causing a material problem for any residents in the tenancy. Certainly some areas of paint has come away from the concrete block wall, but whether that in reality resulted in an impact for those living in the dwelling, is uncertain. The tenants state that previous occupants of the premises had left because of water leaks, but I have not heard any evidence directly from those tenants, so can place a little weight on the tenants statement in that regard. I am also minded that there is evidence of the landlord undertaking water proofing not long before the tenants moved in, so any earlier experience of tenants may not be relevant now.
I am not persuaded that there is evidence to show that the landlord should not have rented the premises when it did.
Ultimately, three months after the tenants moved in, they experienced a water leak in mid-August, for which they notify the landlord. The following month in September there was a bigger water leak, and again that was raised with the landlord.
I do not accept that this is a case of the landlord doing nothing, the landlord has established that he instructed a worker to dig a trench along the retaining wall. An invoice has been provided for that work, dated 5 October 2021.
The landlord’s position is that after the trench has been dug, that they heard nothing further from the tenants about the water leak, and therefore assumed that the leak has been repaired. In my view, that was not an unreasonable assumption to have made, ordinarily if there is a continuing problem, a landlord could reasonably expect that to be reported by the tenant. As I have indicated above, there is a statutory expectation that tenants will raise the need for repairs with the landlord, and the tenants were also required by law to mitigate their loss, which means to reduce their loss, which would have required them to inform the landlord if there was continuing water ingress.
The fact of the tenants not raising this after September 2021, is not consistent with their position at the hearing, that the water leakage was causing them significant loss and especially health problems.
As far as the water leak is concerned, I am satisfied that the landlord has acted reasonably when the leak was raised with them, and in the circumstances, I consider that the landlord has acted diligently in order to repair the leak, as far as the landlord would have been aware of it.
As far as the extractor fan is concerned, the landlord has accepted that there was a fault with the extractor fan, and further that it was not properly addressed during the tenancy. The landlord’s evidence was that the problem with the fan was raised in March 2022, and in order to address the matter, has offered the tenants $30.00 rent compensation per week, until the end of the tenancy. Compensation
Where a party has suffered a loss, from a breach, then the Tribunal can order compensation, in order to compensate for that loss. Compensation is normally fixed at the level of the loss, and therefore puts the person back into the position they would have been but for the other parties breach - as best as money can do.
Certainly there has been a water leak in the premises, that is not in doubt. The tenant first notified the landlord of that water leak in August, then in September 2021, but not again during the tenancy. For the reasons I have set out above, it was a reasonable assumption the landlord made, that given no further issues were raised by the tenant after October when the trench has been dug, that the problem has been fixed. In my assessment, it is reasonable to provide some level of compensation to the tenants, for any inconvenience or additional work they would have needed to undertake, between August and October only, that is for two months.
I do not consider it would be reasonable to order compensation beyond the two-month period, for two reasons.
Firstly, the tenants had a duty to notify the landlord if there was a continuing water leak. Again there is a duty on the tenants to mitigate any loss, and if there was any continuing leak, mitigation at the minimum would require them to notify the landlord.
Secondly, I am not persuaded there is sufficient evidence to show that the tenants had any continuing impact on the tenancy from the water leak, beyond October. The landlord’s claim is that the premises were damp and mouldy.
The only area where water ingress has been proposed, is in relation to the backfilled wall. The landlord’s position is that there is an alternative explanation for the mould in the premises, and that is how the tenants were living in the property. It is well recognised in this jurisdiction, that mould can arise in a dwelling for many reasons, and not necessarily only because there is a defect such as a water leak. As an example, I note the Tenancy Services website, which has good general information for tenants and landlords, says this about a tenant’s obligation to limit mould in the dwelling: What the tenant should do to prevent mould Once you move in, you need to keep the house clean and tidy. This includes keeping it in a condition that doesn’t encourage mould and damp. A well-aired, ventilated house is crucial to prevent mould. You’re most likely to have problems with damp and mould in autumn and winter. A dry, well-aired home is easier to heat and healthier for you and your family. Open windows and doors whenever you can and open the curtains during the day. Activities like cooking, bathing or drying clothes create moisture. To remove this from the house, open windows and use any extractor fans. Other things you can do to prevent mould and damp are: •keep lids on pots when cooking •wipe condensation off walls and windows •hang washing outside, and make sure everything’s dry before putting it away •leave wardrobes a bit open and pull beds and furniture away from walls •keep the shower curtain hanging inside the shower or bath so water doesn’t drip on the floor, and wash the curtain every few weeks •use an electric heater rather than portable gas heaters (these release water as the gas burns) •keep only a few plants inside •if you have a mattress on the floor, air the mattress every day by removing the covers and lifting the mattress onto its side.
Overall, I am not persuaded that the tenants have shown me that the mould that has arisen during the tenancy, is more likely than not to be a consequence of any leak with the premises, as opposed to environmental factors such as how they are living in the premises.
Nevertheless, I have determined that it is fair the tenants be compensated for the 2 months around when the reported water leak occurred. It is always difficult determining what that level of compensation should be, because it is not a case of a direct loss, which can be quantified. The best I can do is to step back, and consider what would be a fair order of compensation in the circumstances. Having done so, and taking into consideration that the premises would still have been quite liveable, I consider a fair level of compensation would be $750.00, and that is ordered.
I note for completeness, that there would be no basis to order compensation for health related effects as claimed. The evidence falls well short of showing that the tenants have incurred any health-related impacts, from any water leak in the lower level of the premises as discussed above. Even if I were wrong in that assessment, there is insufficient evidence to establish that any health related effects would have arisen from mould consequent to dampness that the landlord would be responsible for, as opposed to any environmental problems that the tenants would be responsible for such as impacts that could be addressed by ventilation or cleaning.
In relation to the extractor fan, the landlord accepts that the fan should have been addressed in a more timely way, and I agree. The landlord has offered $30 per week compensation. The tenants consider that level of compensation to be too low, but I disagree. Taking into account the amenity that the tenants would have had in the property they were renting from the landlord, not having an extractor fan working is in the scheme of things, minor. I do not accept that not having a working kitchen extractor fan would cause the chronic health problems the tenants are now claiming have arisen. There is no medical evidence supporting that a nonworking extractor fan would cause high blood pressure, I consider such an outcome would be extremely unlikely.
I consider that $30 per week rent compensation to be a generous level of compensation in the circumstances. Exemplary damages
The tenants have claimed exemplary damages. 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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Taking into account the section 109 factors, I decline to award exemplary damages. As it relates to the water leak, I consider that the landlord has acted with reasonable efficiency in addressing the leak when the tenants raise that. I must take into account that when the leak was first raised it was during the Covid lockdowns, which understandably would limit a landlord’s ability to have work done. Nevertheless the landlord instructed a contractor who had trenched next to the wall, at least by early October.
I also accept that the landlord has done what it reasonably could in order to waterproof the wall from the inside of the premises, and an invoice to that extent has been provided dated 22 March 2021, which is before this tenancy commenced. The tenants have not provided me with any evidence from a tradesperson, or suitably qualified expert, showing that the landlord should reasonably have taken additional or different steps.
In short, I am not persuaded that the landlord has failed to maintain the premises.
There is also the issue of the extractor fan. I do consider that the landlord has been tardy in having the extractor fan fixed, but on balance the breach is of a minor nature, and I do not consider it would be just to order exemplary damages. I consider the more appropriate outcome in relation to the extractor fan is an order of compensation, which I have made above.

Tenancy Tribunal case 4462520 — Leaks at 88 Stapleford Crescent, Browns Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4462520 — Leaks at 88 Stapleford Crescent, Browns Bay, Auckland 0630

At a glance

Claims & awards

Order

Reasons

TENANTS CASE

LANDLORDS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

TENANTS CASE

LANDLORDS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions