Published tribunal order
Tenancy Tribunal case 4486437 — State of repair at 24 First View Avenue, Beachlands, Auckland 2018
Decided 26 Jan 2024 · Published 26 Jan 2024 · Application 4486437
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s names and identifying details and the name of the property manager.
- The landlord has failed to maintain the property in a reasonable condition.
- The tenant’s claims for breaches of the Healthy Homes Standards are dismissed.
- The landlords notice to terminate the tenancy dated is valid and the tenancy will end on the 24 March 2023.
- [The landlord/s] must pay [The tenant/s] $5,020.44 immediately being compensation ($2500.00), exemplary damages for failure to maintain ($2500.00) and the filing fee ( $20.44).
Reasons
- Both parties attended the hearing on the 10 March 2023. Background
- The tenants have lived in the property for almost five years with their young children, the youngest of whom is only 15 months old. The tenant are immigrants to New Zealand who wish to make New Zealand their permanent home. The husband works long hours in his job and the wife looks after their young children. They both tell me that they love living in their community and have made many friendships and connections through their children’s school and preschools. The youngest children were both born whilst the tenants have lived in the property.
- The house is modest weatherboard three-bedroom home with a family sized section. The rent at the beginning of the tenancy was $500.00 per week and has remained at that level until June last year when the landlord sought to put the rent up to $580.00 per week.
- The tenant’s do not dispute that the market rent should be $580.00.
- The tenants say that since the beginning of the tenancy they have asked for items to be repaired at the home but that the property managers of the landlord have either ignored their requests or have taken an unreasonable amount of time to repair items. The tenants say that there are many instances which show that the tenants have asked the landlord to repair items and that has not been done.
- [The property management company] have managed the property throughout the tenancy. There have been various property managers over the tenancy. [The property manager/s] became the property manager in October 2021 and continues to manage the property. On the 8 October 2021 she conducted a property inspection, at the inspection she noticed mould and mildew and subsequently issued a 14-day notice requiring the tenant to clean the property.
- The issuing of the 14-day notice upset the tenants. On the 12 October 2021 they sent the landlord an email which stated. “There are so many problems we are already mentioning so many times bit nobody care and nobody fixed it! The carpet got mark and broken at the edge beside the window. The ceiling of the laundry (leaking) The smoke alarm not working properly (always make noise need it fix it ASAP) the entry door lock broken (nearly over half a year)The ceiling light broke (over three years)The outside deck got some many broken (over three years) the sliding door of the toilet is not working(over half a year) No heater or air conditioner the house was freezing during winter. The dishwasher machine is notworking (since we came here)and another problem I will show you. Like you said that I hope you can do your bit to help us with those problems. And we definitely will do our bit. Thank you.” (sic)
- When the landlord wanted to raise the rent to $580.00 in June 2022 the matter came to head. The tenants said that they did not think it was fair that they should pay an increase in rent, when the maintenance items that they had reported to the landlord were not being attended to, and that they were living at that stage in a leaking house.
- The tenants claim that the landlord has breached their obligations to repair and maintain the premises, in particular: a) That there were ongoing leaks at the premises from the roof b) That once the leaks were fixed that the holes in the ceilings were not fixed c) That the sliding door to the toilet needs repair d) That the front door does not shut properly without being locked. e) That the carpet has worn exposing tacks f) That the deck is uneven, rotten and that it has nails protruding. g) That the dishwasher does not work.
- The tenants have sought compensation and exemplary damages for the breach for filing to maintain and repair.
- The tenants have also claimed that the landlord has breached the Healthy Homes Standards.
- The issues that require determination are; a) Has the landlord breached its obligation to repair and maintain the property? b) If so, what is the appropriate amount of compensation and should exemplary damages be payable? c) Has the landlord breached the Healthy Homes Standards? d) If so, what is the appropriate amount of compensation and should exemplary damages be payable? e) Is the landlord’s notice to vacate valid?
Has the landlord breached its obligation to repair and maintain the property?
- The landlord has an obligation to provide and maintain the property to a reasonable state of repair taking into account the age and character of the premises, and the length of time that the premises will remain habitable. (s45(1)(b) RTA).
- A landlord has no obligation to repair defects that it cannot see1, or have not been notified. However, when a landlord becomes aware of a problem, the landlord must repair the problem within a reasonable time.2
- The factors that are considered by the Tribunal when determining whether the landlord has breached s 45 (1)(b) include: a) The nature and extent of the problem; b) The gravity of the problem; c) Whether the tenant has asked for the repair; 1 Barfoot & Thompson v Casey DC Auckland CIV 2005-004-1762, 7 November 2007. 2 Collins v Professionals Hutt City Limited DC Wellington CIV 2009-085-1431 d) Whether the repair was apparent from observation or would warrant investigation. The roof.
- The tenant says that they first noticed leaking in the property on or about September/ October 2021 when she noticed discolouration and bulging in the laundry ceiling. She immediately notified the landlord. The property manager [The property manager/s] says that had understood that the leak had been fixed by the previous property manager and thought the tenant was complaining about the hole in the ceiling. The property manager accepted at the hearing that her assumption that the leak had been fixed by the previous property manager was wrong, and the leak had not been repaired.
- In about April 2022 a further leak occurred in the children’s bedroom. Again, the tenant notified the landlord.
- In August September 2022 the landlord reroofed the property.
- I am satisfied that the landlord has failed to repair and maintain the roof because: • The tenant’s email to the landlord on the 12 October 2021 clearly states that the ceiling in laundry is leaking. • In the landlord’s property inspection report dated 11 February 2022 some 5 months after the tenant’s email it notes the hole in the ceiling in laundry which needed patching. • In the landlord’s property inspection report dated 20 July 2022 the landlord noted the leaking in the laundry and the bedroom. • The tenant says that they told the landlord on numerous occasions that the roof was leaking. It took the landlord almost a year to have the leaking investigated and the cause of the leak remedied. This was too long. The leaks were apparent and should have been investigated immediately and repair work should have been carried out. • I am further satisfied that even after the roof was repaired the landlord has not adequately repaired the hole in the laundry ceiling. The tenant has been left with a very large hole in the ceiling since the repair. It has been like this from September to the hearing date. It is unsightly and allows a draught in the house. There are smaller holes in the eves as well. The sliding door in the toilet.
- The toilet is accessed through the bathroom. It can be shut off from the bathroom by a sliding door. This allows the toilet to be used privately whilst someone else uses the bathroom.
- The tenants say that in early 2021 the sliding door had come off its runners and was unable to be closed. They say they raised it with each of the property managers that they had at the time. It is noted in the tenant’s email to the landlord dated 12 October 2021.
- Despite the tenants’ notification the landlord did not fix the toilet door nor send anyone to remedy it. On the 19 October 2022 the property manager noted on her inspection report that the toilet door rollers do not slide anymore.
- As at the date of the hearing (10 March 2023) almost 2 years after first being notified of the issue, the door has not been repaired. The landlord submitted that it was unreasonable to fix this issue within that time because the bathroom had a door separate to the toilet, and that toilet users could simply lock the bathroom door. The landlord also submitted that the repair was difficult in that the wall would need to be removed, to get into the cavity, and given the age and condition of the house it was not economic to carry out the repairs.
- I am satisfied that the landlord has breached s45(1)(b) by failing to repair the rollers on the sliding door in a timely manner. I say this because: • Two years is too long. • The tenants rented a property with a working sliding door that meant that the toilet and the bathroom could be used at the same time with privacy. The tenants gave evidence that in the morning, if someone was using the toilet then the children could not use the bathroom to brush their teeth or wash their face. The tenants quite rightly also pointed out that smells and germs could be better contained in the toilet with a working door. When tenants rent a house with a feature such as separate toilet, then they should be provided with a separate toilet. • The house is not near the end of its life and was rented out with a separate toilet, it should be maintained in this way. The front door
- The tenants complained that the front door latch broke in or about early 2021. Again, this is noted in the tenant’s email of 12 October 2021 to the landlord. The issue is also noted in the inspection reports of the 20 July 2022 and 19 October 2022.
- The front door has still not been repaired.
- The tenants say it is an issue as the front door can only be locked and unlocked with the key. It does stay shut unless it is locked. This means that every time the family go in and out the front door, they have to remember to lock it shut with the key otherwise it will not shut properly and will open. As mentioned, the tenants have very young children. The property is not full fenced and if the door is open, then the children can go outside and potentially onto the driveway or out the gate. The tenants say that they also have to keep the key close by, they say that this issue whilst appearing small has caused them daily inconvenience and stress, because whenever the tenant goes in and out she has to take the key with her, and she is constantly worried about the children getting out of the door.
- I consider that the landlord has breached their obligations to fix the front door in a timely manner. The landlord was aware that three young children were living at the property. The broken latch was a safety risk for the tenants. It was a relatively easy fix and should have been attended to in a short space of time. The carpet.
- The tenants say that the carpets are worn along the edge of the lounge ranch slider and the edge between the kitchen and the living area exposing the carpet tacks. They raised this issue with the landlord in October 2021. The tenant supplied photographs taken on her phone of the problem as early as February 2021. The landlord notes it in her inspection of the 20 July 2022 saying “The carpet by both ranch sliders doors is fraying and the underlay nails are exposed. I will organise mats to be placed on top. The landlord says that she provided mats but that the tenant did not use them.
- The tenant says that the mats were not big enough for the whole area, and further were impractical for open living/ passage areas where they were a trip hazard. They say they did use the mats by the ranch slider and indeed in the landlord’s inspection photographs of the 19 October 2022, the mats are being used. However, the photographic evidence supports the tenant’s evidence that the carpet was fraying at the edges exposing tacks that were not covered up by mats.
- In correspondence in July 2022 the landlord acknowledged that she was working on a solution for the carpets, but the carpet has still not been repaired.
- Whilst I accept the mats by the ranch slider mitigated the problem it did not solve the problem. I do not think it acceptable that the landlord waited almost 2 years to provide mats to the tenants. This damage was evident in the inspections and had been raised by the tenant. I consider that the landlord has not maintained the carpet in a safe and therefore reasonable condition.
- The tenants’ children often stood or crawled on the tacks. They were injured as a result. The tenant produced photographs of the children’s’ injuries. The deck.
- The tenants say that the deck has rotted in places and nails have lifted. The tenant says that she has told property managers about the problem over the whole of the tenancy. During the early years of the tenancy two wooden planks were replaced. The tenant provided photographs of the problematic deck timber. The photographs show raised nails and timber that if not at the end of its life, almost there. The landlord says that it had its handyman inspect the deck and it was considered safe and in a reasonable condition.
- I am satisfied that nails in the deck were rising making the deck uneven and hard to walk on without shoes. The deck is a feature of the house. It is partially covered and extends the living area. From the photographs provided in the inspection reports it is clear that the tenants use it often.
- I am satisfied that the landlord failed to maintain the deck by ensuring the nails were nailed in, thereby making it safe for the children and tenants to stand on. I record that I do not find that the deck was rotten because it was inspected and assessed as not rotten. The nails however are evident from the photographs and are noted as an issue in the inspection report of the 19 October 2022. The dishwasher.
- The tenants say that the dishwasher does not work. The landlord says she has tested the dishwasher and it does work. The property manager says the tenants are not using the dishwasher correctly.
- Having heard all the evidence, I was not able to determine why the dishwasher is not working. I am satisfied that it does not work but I was unable to prefer the evidence of one party over the other. Neither party produced evidence from a dishwasher repair person as to what was wrong with the dishwasher. I further note that the dishwasher is not listed as a chattel on the tenancy agreement.
- The tenant has not proven that the landlord has failed to maintain the dishwasher. What is the appropriate amount of compensation and should exemplary damages be payable?
- As I am satisfied that the landlord has breached its obligations to maintain the property, in respect of the roof, holes in the ceiling, sliding door in the toile, front door latch, carpet tacks and deck I turn now to the issue of compensation
- Compensation should restore a party to the position that they would have been in had the breaches not occurred.
- Breaching s 45(1) (b) intentionally is also an unlawful Act. See Section 45(1A) RTA. Exemplary damages can be awarded up to a maximum of $7200.00 for this unlawful act where the Tribunal 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.
- Exemplary damages can be made in addition to any compensation.
- The tenants have said that because of the leaks in the roof, that they were unable to use the children’s bedroom for a period of July to September 2022, they also had to endue leaking from the hole in the laundry for over a year and half. The landlord says that the tenant’s have not paid the increased rental of $580 per week since the rent increased.
- Taking into account the lack of amenity that the tenants endured as a result of the landlord’s failures to maintain, I consider the sum of $2500.00 to be appropriate compensation. This amount takes into account the lack of amenity (not being able to use the bedroom from July- September 2022) cleaning up leaks and mould which I consider was at the very least was partially caused by the leaks, the punctured tire when the roof was being fixed which occurred as a result of the roofers leaving roofing nails on the driveway.
- I also consider that it is appropriate to award exemplary damages for the breach because I am satisfied that the landlord acted intentionally. They were informed of the problems at the property and they have left those issues for too long.
- I consider it appropriate to award a further sum of $2500 in exemplary damages for this breach this award takes into account: a) The effect on the tenants. The tenants gave evidence supported by friends and family of the cumulative effect of the breaches on their lives. The wife told the Tribunal of being anxious, stressed, upset about raising issues with the landlord and not having any control about when the problems would be fixed. Her doctor had written a statement in support saying that she had reported to her GP over many visits her anxiety and stress over her housing issues and in particular the leaking in the house. She was concerned about getting 14 day notices for not cleaning the mould, and being blamed for the condition of the house. She was concerned about the effects of leaks, mould, the carpet tacks on the children. She talked about the daily inconvenience and reminders of small things that should have been quickly fixed such as the door latch and the toilet door. She told me at hearing she felt unheard and unseen. b) I also take into account that the tenants’ children were injured as a result of the carpet tacks and the nails on the deck. c) The landlords gave evidence that the first hearing that the rent had been lower than usual. I accept that may be the case, but that was the landlord’s choice not to raise the rent. A landlord cannot absolve itself of its lawful obligations by keeping the rent low. d) The public interest: This property was managed the whole time by Barfoot and Thompson, a large property management company. The tenant should have expected that a property managed by this company would have given it reassurance that the RTA would be complied with and that repairs would be conducted quickly. It is in the public interest that when landlord’s do not provide housing that meets the standard, especially when there are children in those houses that an award is made. It is extremely important that simple fixes such as the latch on the door, which provide important safety features, such as stopping the children from running on the driveway or the road are attended to quickly. e) The number of breaches and the length of time to fix.
Has the landlord breached the Healthy Homes Standards?
- The landlord claims that the tenants breached the s 45(1)(bb) Healthy Homes Standards. The tenancy began in August 2018. In 2019 it reverted from a fixed term to a periodic term. The Healthy Homes Standards (as set out by the Residential Tenancies Act Healthy Homes Standards regulations 2019 (“the HHS Regulations”) come into force at different times for different types of tenancies. As this tenancy began before the 1 July 2021 the date of compliance with the HHS regulations is 1 July 2024 3 . Therefore the tenants’ claims that the landlord has breached their obligations to comply with the Healthy Homes Standards fails as the landlord was not obliged to comply with the HHS, with this tenancy, until the 1 July 2024. Is the landlord’s notice to vacate valid?
- Since the last hearing date (see decision dated 12 December 2022) the landlord has given a further notice to terminate on the grounds that the landlord required the premises for their grandson to live in.
- The tenancy will terminate on the 24 March 2023. At the hearing I gave the parties a verbal determination that the landlord’s notice to end the tenancy was valid. I record that determination here. I am satisfied that the landlord has complied with the notice requirements of the RTA and the notice was motivated wholly by the landlord’s desire that their grandson live in the premises. The filing fee and name suppression.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee and grant them name suppression.
- The landlords have also requested name suppression. I do not grant the owners or [The property management company] name suppression. As the unsuccessful party they are not entitled to name suppression and I do consider that there is some public interest in knowing the names of the landlords particularly the name of the landlord’s agent.
- However, I grant name suppression to [The property manager/s], the property manager, she has appeared as both a representative and witness in this matter. 3 See schedule 2 clause 2 of the HHS Regulations. I do not consider that there is any public interest in knowing the name of [The property manager/s].