What was Tenancy Tribunal case 4486380 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 4486380?

Property Damage: $500.00 awarded to tenant; Property Damage: $720.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Painting: $450.00 awarded to landlord; Property Damage: $656.36 awarded to landlord; Toilet: $75.00 awarded to landlord; Wardrobe Door: $30.00 awarded to landlord; Water Rates: $189.40 awarded to landlord

What type of tenancy dispute was case 4486380?

The primary dispute was Mould & damp. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4486380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9349544-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4486380 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 4486380?

Property Damage: $500.00 awarded to tenant; Property Damage: $720.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Painting: $450.00 awarded to landlord; Property Damage: $656.36 awarded to landlord; Toilet: $75.00 awarded to landlord; Wardrobe Door: $30.00 awarded to landlord; Water Rates: $189.40 awarded to landlord

What type of tenancy dispute was case 4486380?

The primary dispute was Mould & damp. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4486380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9349544-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4486380 — Mould & damp

Claims and awards in Tenancy Tribunal application 4486380 — net $19.24 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Window repairs	$656.36		Window repairs
Painting	$450.00		ot be better or worse off as a result of the breach. I order the tenants to pay $450.00.
Repairs: Toilet	$75.00		Repairs: Toilet
Repairs: Wardrobe door	$30.00		Repairs: Wardrobe door
Water rates	$189.40		Water rates
Exemplary damages: Mould		$720.00	Mould
Exemplary damages: Failure to maintain		$500.00	Failure to maintain
Exemplary damages: Unlawful entry		$200.00	odest award of exemplary damages should be imposed. I order the landlord to pay $200.00 in exemplary damages.
Total award	$1,400.76	$1,420.00
Net award		$19.24
Bond		$2,600.00
Total payable by Landlord to Tenant		$19.24

Claims and awards in Tenancy Tribunal application 4486380 — net $19.24 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Window repairs	$656.36		Window repairs
Painting	$450.00		ot be better or worse off as a result of the breach. I order the tenants to pay $450.00.
Repairs: Toilet	$75.00		Repairs: Toilet
Repairs: Wardrobe door	$30.00		Repairs: Wardrobe door
Water rates	$189.40		Water rates
Exemplary damages: Mould		$720.00	Mould
Exemplary damages: Failure to maintain		$500.00	Failure to maintain
Exemplary damages: Unlawful entry		$200.00	odest award of exemplary damages should be imposed. I order the landlord to pay $200.00 in exemplary damages.
Total award	$1,400.76	$1,420.00
Net award		$19.24
Bond		$2,600.00
Total payable by Landlord to Tenant		$19.24

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord name and identifying details.
[The landlord/s] must pay [The tenant/s] $19.24 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,600.00 ([Bond number suppressed]) to [The tenant/s] immediately.
All other applications are dismissed.

Reasons

Both parties Both parties attended the hearing on 28 August 2023.
[The landlord’s representative] appeared for the landlord. All tenants attended.
The premises are at [Tenancy address suppressed] (“the premises”). The premises are a part of a single storey duplex.
The tenancy commenced on 12 February 2022 and ended by consent of both parties on 8 February 2023. General Law
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities.” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might best be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
I do not need to be completely certain, but I need to be more certain than uncertain. I must consider all the evidence presented, including oral evidence at the hearing. I have to consider all that evidence in coming to a decision on whether something is more likely than not.
In this matter, the onus or job of proving the claim falls on each of the parties with regards to their respective claims. The onus of proving the tenant claim is on the tenant. The onus of proving the landlord claim is on the landlord.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.
The tenant has made the following claims; • Work orders • Release of the bond • Healthy Homes standard breaches relating to mould, drafts, drainage and heating. • Failure to maintain the premises. • Non-compliance with smoke alarm requirements. • Unlawful entry by the landlord • Reimbursement of the filing fee.
The landlord has made the following claims; • Unpaid water bill. • Compensation for damage. • Compensation for cleaning • Release of the bond • Reimbursement of the filing fee.
I propose dealing with the tenant claims and related evidence first and then the landlord claims, although there may be a degree of overlap of the evidence between the tenant claims and the landlord claims. Tenant Claims Work orders
I explained to the tenants at the commencement of the hearing that work orders can only be imposed by the Tribunal where there is an existing tenancy. This tenancy ended on 8 February 2023. The application is dismissed. Healthy Homes Standards – Drafts
[The tenant/s] claim 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] that the landlord has failed to comply with the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy. All private rentals, such as the premises must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024.
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 tenants said in evidence that the window in one bedroom had a misaligned vertical post resulting in a gap the size of 2 coins which allowed a draft into the room.
The landlord said that they were never advised of the issue by the tenants.
[The witness/es] was called by the tenants to give evidence of a meeting between the tenants and landlord which took place on 18 June 2022. [The witness/es] had also been present at the meeting. He said that the landlord was advised at that meeting of the draughts and mould issues.
The landlord provided a Healthy Homes Certificate of Compliance report from AAA Healthy Homes. The report is dated 23 August 2023, approximately 5 months after the end of this tenancy. The landlord explained the delay by saying that they had not been aware of the tenant claim to the Tribunal until very recently. Having received the tenant claim, they instructed a contractor to complete the report. The landlord confirmed that no work had been done on draught stopping between the end of this tenancy and the report being completed.
The report records that the home was free of “ ...unreasonable gaps and holes which could facilitate excessive heat loss”.
The onus of proving this claim is on the tenant. In this claim I do not consider that the tenant has proven that it was more likely than not that there were unreasonable gaps. The application is dismissed. Mould
The tenants claim 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] consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard resulting in dampness and mould. The tenancy is also required to be free form dampness and mould under the Housing Improvement regulations 1947 which require that every home be free from dampness.
Mould is problematic and will grow in a home where humidity or moisture is high. There are two ways to reduce mould. By heating or ventilation, ventilation being the most basic requirement.
Responsibility for mould can rest with the tenant if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide tenants with reasonable means to heat and air the premises, if appropriate fans and dehumidifiers can be provided.
A landlord is also required to provide premises that are not prone to mould . If there is an inherent problem with mould at the premises, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould so that the appropriate action can be taken by the landlord. In terms of maintenance, a landlord’s obligation is to investigate and repair a defect brought to its attention within a timeframe that is reasonable in the circumstances. What is a reasonable time, depends on the gravity of the problem and the objective evidence of the attempts made by the landlord to investigate and put right the problem (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)).
A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If that cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises, when heating and ventilation is available, then it is the tenants problem.
Having considered all of the evidence, I consider it more likely than not that these premises are prone to mould. There is enough evidence from the tenants of the existence of mould in the bathroom. The landlord’s evidence was that prior to this tenancy commencing, mould was cleaned from the shower ceiling prior to it being painted.
I accept that the landlord was advised of the issue with mould in the bathroom on the basin vanity early on in the tenancy. The tenant said that he could not recall if they advised the landlord of mould in the cupboards and bathrooms. As previously indicated, there is an obligation on the tenant to inform the landlord of defects.
I find [The landlord/s] committed an unlawful act in relation to the bathroom vanity.
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.
Exemplary damages are designed to punish and deter. They are like a fine.
The loss that I must focus on is interest of these tenants and tenants generally in not having mould present. These tenants have had to live with mould in the premises for the term of their tenancy. The tenancy has lasted for a year. In setting the level of exemplary damages, I take into account that the mould does not cover an extensive area. The house appears to otherwise be in reasonable condition and I am not aware of this landlord having previous issues of this nature before the Tribunal.
The maximum amount that can be awarded in exemplary damages under this section is $7,200.00. I order the landlord to pay exemplary damages of $720.00.00.
I make no order with regards to any other mould issues raised by the tenants. I am not persuaded that it is more likely than not that the tenants gave the landlord notice of the issue. In making this finding, I rely particularly on the tenants evidence that they were not sure if they had advised the landlord of the problem. Heating
Whilst the tenants made a claim regarding the lack of heating, no evidence was proffered by the tenants at the hearing and that application is dismissed. Smoke Alarm
Whilst the tenants made a claim regarding the smoke alarms failure to comply, no evidence was proffered at the hearing on this issue and the application is dismissed. Failure to maintain
[The tenant/s] claim 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.
There is a connected responsibility on the tenant to tell the landlord of any outstanding maintenance issues.
I record for fullness at this point, that a complaint by the tenants regarding the shower leak was dealt with promptly by the landlord.
The tenants claim that from the commencement of the tenancy a ceiling in one bedroom sagged.
All the parties completed and signed a pre tenancy inspection report at the start of the tenancy. No reference is made in that report as to the sagging. That of course makes it very difficult for me to accept that this part of the tenant claim is proven. The purpose of the pre tenancy report is to avoid the “he said...she said” situation as to the condition of the premises. In this matter, I find that the tenants have been unable to prove the claim relating to the sagging roof.
The tenants said that the windows in one bedroom could not be opened.
The landlord said that the window surrounds were of an older wooden style which when are likely to swell making them very difficult to open.
The tenants say they told the landlord of this issue in September 2022.
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.
I find, based on the evidence of the tenants, which in this issue I prefer, that the landlord was advised of the problem with the windows in September 2022, but failed to affect a repair. I find they have 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 interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Having been advised of the issue, the landlord has not taken steps to remedy it.
It is in these tenants interests and tenants generally, to have building defects repaired in a reasonable period of time where they have informed the landlord of the defect.
The landlord has not repaired the issue within the time leading up to the end of the tenancy. I consider the defect to be relatively minor and taking that into account award exemplary damages of $500.00. Unlawful Entry
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) Residential Tenancies Act 1986.
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 tenants said that the parties initially agreed to meet at 7 pm on 8 February 2023 to complete the final inspection.
The landlord says that she advised the tenants that she could not meet with them at that time due to personal commitments and said that the final inspection would need to be on 9 February 2023.
The tenants said that they had a cleaner at the premises on 8 February 2023. The cleaner contacted the tenants to say that the landlord had arrived at 4.45 pm and that the landlord was harassing the cleaners and directing the to carry out further cleaning.
The landlord said that she was in the area of the premises on the afternoon of 8 February 2023. New tenants were to move in the next day. She said that she contacted the tenants to ask if she could have a quick look at the premises. The tenants agreed.
Having reviewed the evidence I think it is more likely than not, that the landlord went to the premises on 8 February 2023 to have an informal look at the premises being cleaned, without advising the tenants.
I find the landlord has 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 interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Having considered the evidence, I consider it more likely than not that the landlord did attend the premises knowing that she was not entitled to. Having said that, the purpose of this section is to protect the privacy of the tenants. The tenants were not present and were moving out the next day. In light of that, I consider a very modest award of exemplary damages should be imposed. I order the landlord to pay $200.00 in exemplary damages. Landlord claims

Is the tenant 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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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. The landlord has insurance for tenant damage. The excess on the policy is $1,000.00.
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.
The following damage was caused during the tenancy.
Four windows have been cracked. The landlord has provided photos of the cracks. I accept that the photos were taken on 9 February 2023. The landlord has provided an invoice for the repair of the windows in the sum of $656.36. There is no reference to there being any cracks in the pre tenancy property report.
The tenants deny having caused the cracks.
I find that the damage has occurred during the tenancy, is more than fair wear and tear, and the tenant has not disproved liability for the damage. The amount claimed is proven.
The landlord claims $730.00 for the repainting of 2 walls. During the course of the tenancy complaints had been raised as to tenant noise. In an attempt to resolve the issue, the tenants have stuck approximately 20 foam squares on the wall.
At the end of the tenancy the tenants removed the foam blocks. The tenants said that the blocks had been stuck on the wall using 4m double sided tape which did cause damage to the wall surface on removal.
I find that the damage claimed occurred during the tenancy, is more than fair wear and tear and the tenant has not disproved liability. In setting the amount of compensation to the landlord I have taken into account betterment and depreciation. The landlord should not be better or worse off as a result of the breach. I order the tenants to pay $450.00.
Broken toilet seat. The landlord provided an invoice for $75.00 for replacement and installation labour. I find that the damage has occurred during the tenancy, is more than fair wear and tear, and the tenant has not disproved liability for the damage. The amount claimed is proven.
Replace bedroom wardrobe door. For reasons that are not apparent, a wardrobe door from one of the bedrooms was removed and put at the rear of the premises by a tenant. The landlord claims $40.00 for the installation cost by their handyman. There would have been a small amount of time for this work and I consider $30.00 to be a reasonable claim and the tenants are ordered to pay that sum. Cleaning
The tenants had their own cleaner carry out a total of 7 hours cleaning at the end of the tenancy.
The landlord did not think that the cleaning was of a sufficient standard. A photo was provided of a dishwasher that was clearly not clean. It was eventually cleaned by the new tenants at no cost to the landlord.
Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) RTA). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) RTA).
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters”. ( the emphasis is mine).
The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
I consider that with the exception of the dishwasher these premises were left reasonably clean and tidy. The further cleaning by the landlord was cleaning carried out to bring the premises to a standard appropriate for a new tenancy. The landlord application is dismissed. Water rates
The landlord provided water rates invoices which record that the water rates were in arrears in the sum of $189.40 at the end of the tenancy. That sum is proven.
Both parties have had a degree of success in this matter. In those circumstances, I make no order for reimbursement of the filing fee.
Both parties have applied for name suppression. Both parties have substantially succeeded with regards to their own claims. In those circumstances, I order suppression of the tenant and landlord details.

Tenancy Tribunal case 4486380 — Mould & damp

At a glance

Tenancy Tribunal case 4486380 — Mould & damp

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions