Published tribunal order
Tenancy Tribunal case 4498023 — Exemplary damages at 6 Thurston Place, Bucklands Beach, Auckland 2012
Decided 6 Oct 2023 · Published 6 Oct 2023 · Application 4498023
- Exemplary damages
- Smoke alarms
Party names are redacted in the official published order.
Order
- This order replaces the order that was issued on 22 September 2023 in this matter. The order is now reissued to clarify that the sum ordered to be paid below must be paid by the landlord from the date of this order, 2 October 2023.
- Suppression is ordered with respect to the tenants and all identifying details of the tenants.
- The landlord must pay to the tenants the sum of $2550, as is set out in the table below. Compensation for cockroaches / pests / vermin$6000 Compensation for rubbish left behind by previous tenant$200 Compensation for faulty oven / cook top$3800 Compensation for curtains$500 exemplary damages - installation$2000 exemplary damages - heating$1500 exemplary damages - ventilation $1000 exemplary damages- draught stopping $2000 exemplary damages moisture ingress / drainage $1000 exemplary damages - smoke alarms$3000 exemplary damages - failure to lodge bond$3000 return of bond, wrongful retained by landlord and used to pay her mortgage $5200 Sub total of amount owing by landlord to tenants$29200 LESS (offset) $26,650 for rent owing as at the date of termination of the tenancy $26650 Grand total amount payable by landlord to tenants$2550
Reasons
- This tenancy commenced on 10 January 2023 and ended on 12 August 2023.
- The landlord has appointed agents in New Zealand, Mr and Mrs Dave. Mr and Mrs Dave attended the hearing on behalf of the landlord. They say they are agents for the purposes of maintenance. The landlord did not appear at the hearing.
- [Tenant 2] had leave to appear by telephone, as did her daughter, [Tenant 1]. There has been a prior case management conference in this matter, at which [Tenant 2] appeared in person. At that conference, the issues to be resolved were clarified and recorded.
- The tenants have made claims against the landlord and the landlord has made claims against the tenants.
- In summary, the tenant's claim against the landlord is that the landlord has failed to comply with Healthy Home standards and the landlord’s obligations of repair and maintenance under s 45 of the Residential Tenancies Act 1986 (the RTA). The particulars are: a) rubbish was left behind on the property from the prior tenant b) non-compliant / faulty gas fitting works were undertaken on the property by the landlord c) the stove / oven is not working d) the property has mice/ rat cockroach problem e) there were no light bulbs or curtains in the property f) the light bulb in the lounge leaks when it rains.
- The tenants have obtained a Healthy Homes report from [Maintenance and repair company] which records multiple areas in which the property is non-compliant with the Healthy Homes standards.
- The tenants also claim that the bond of $5,200 was never lodged. The landlord’s claim
- The landlord was initially wanting an order for termination of the tenancy, however that is no longer necessary because the tenants have vacated the property as of 12 August 2023.
- The landlord is now wanting an order for rent arrears.
- I deal first with the tenants’ claims, because those claims were filed first. Breaches of section 45 of the RTA.
- Under s 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 1
- The landlord has an obligation under the Housing Improvement Regulations 1947, regulation 7, to ensure that in a kitchen there must be adequate means of preparing and cooking food, both by boiling and by baking.
- The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 2 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 3 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 4
- I now deal with each of the tenant’s allegations. Rubbish was left behind on the property from the prior tenant.
- The tenants say that when they went to move in, they noticed that the prior tenants left a lot of rubbish behind. It took the landlord some time to remove it. The tenants had the rubbish sitting there for 3 or 4 weeks. The unsightly rubbish included food items, including bacon, sausages, open pack of mince. This produced maggots, cockroaches and two rats.
- Mrs Dave confirmed that rubbish was left behind by a prior tenant and that she and her husband organised it into two piles. She said it was removed within a few 1 Section 45 of the RTA 2 DC Auckland CIV 2005 004 1762, at [28] 3 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15], and see further authorities discussed in “Residential tenancy law in New Zealand”, Stewart Benson, 2018, at page 132 weeks. She said the delay was out of her hands because although it was booked for 10 January 2023, [Rubbish collector] did not pick it up for a few weeks.
- I find that although the delay was out of her hands, the landlord is in breach of s 45 of the RTA by not removing this rubbish before the tenants moved in.
- I allow the tenants compensation of $200 for this breach. Non-compliant / faulty gas fitting works were undertaken on the property by the landlord, the stove / oven is not working
- When the tenants moved in, they say the stove was not working. The oven was not working either.
- The tenants informed Mr and Mrs Dave. The Daves sent a friend to install a gas bottle under the cupboard next to the oven and a hot plate.
- The tenants were not happy with this and called [Gas company] to attend at the property. They did this because they noticed that every time they lit the element, the element appeared to flare out.
- [Gas company] produced a report dated 25 January 2023. It reported that the cooktop had not been installed in accordance with recommendations and that the gas bottle had been installed inside. It recommended not using the cooktop.
- The tenants sent the report to the landlord.
- On the 24 th of May 2023, the landlord replaced the oven and stove.
- Mr and Mrs Dave accept the stove and the oven needed replacement and that the work done on the cooktop was non-compliant. They say however that the issue was eventually repaired.
- I find the landlord has breached her obligations of maintenance and repair by providing an oven and cooktop which did not work, and then undertaking non- compliant repairs on the cooktop. The non-compliant work could have been very dangerous.
- The tenants were out of an oven and cooktop for nearly four months.
- I award the tenants compensation that equates to $200 per week for 19 weeks. The amount ordered by the landlord to pay to the tenants is $3,800. The mice/rat cockroach problem
- The tenants believe the mice and rats initially came following the rubbish incident but say that there was an existing cockroach infestation. The main issue that they had was the cockroaches. They say there were cockroaches living in the oven when they moved in. Nothing could be left on the kitchen counter. They were throughout the house.
- [Tenant 1] called a pest control business who said it was not worth spraying because the house was likely infested. The pest control business said they were likely German cockroaches.
- Mr Dave accepts he saw the cockroaches when the oven was lifted up. He accepts that this had been a problem for a while and that it is a function of how people live. He said: “it is not my problem to get rid of cockroaches”. He accepted that the cockroaches were most likely there from prior tenants.
- The approach of the Daves is that this was not their responsibility to fix.
- I consider it unsatisfactory that the tenants were expected to live in these conditions. I accept their evidence there was a cockroach infestation at the property when they moved in, which was not denied by the landlord. The landlord ought to have engaged the services of a pest control expert to exterminate these pests at the outset of the tenancy. If they were already aware of the infestation by a prior tenant then it should have been addressed before the tenants moved in. If not then, then as soon as the tenants made them aware of it.
- I find there to be no evidence at all that the tenants cause the infestation of cockroaches.
- I award the tenants a sum which roughly equates to $200 per week by way of compensation for this issue for the duration of the tenancy. The amount ordered is $6,000. There were no light bulbs or curtains in the property/ the light bulbs in the lounge leak when it rains.
- The tenants says that when they moved in there were only a few light bulbs in the property when they moved in. On the 27 th of January, the tenants complained about the fact the light in the lounge leaked after a heavy rain. Nothing was ever done to repair it and every time it rained, the water would come in.
- The tenants say in every room the curtains were either mouldy, the nets broken, no curtains, or they were ripped and tatty. The landlord said they would be replaced or sorted, but they never were.
- Mrs and Mr Dave say that all the light bulbs worked when the tenants moved in.
- They accept the curtains were in the condition the tenants were alleging but say they took steps to obtain new curtains. The tenants then said they were moving out and stopped paying rent, so they then did not install them.
- Mr and Mrs Dave say they were denied access to investigate the leaking lightbulb.
- [Tenant 2] says she did not initially deny access. She said it was only after the relationship began to sour that she refused to allow Mr and Mrs Dave in the property, however, the tenants said they were willing to allow the landlord’s workers into repair the damage.
- The landlord should have repaired the leaking lightbulb as soon as reasonably practicable after it was reported.
- I am not satisfied based on the evidence provided that the lightbulbs did not work throughout the property or that there was a breach of the landlord’s obligations with respect to a leak in the light fitting.
- I accept the tenant’s evidence that the curtains were in the condition they say, and I note this is not in any event denied by the landlord. I award the tenants compensation of $500 for this breach as I accept not having adequate curtains it not appropriate in a tenancy. The Healthy Homes standards Insulation
- Under section 45(1)(bb) of the RTA, a landlord must insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- 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 (1)(A) and Schedule 1A RTA. Heating
- The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity.
- 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). Ventilation
- 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 tenants consider that the landlord has failed to comply with the HHS ventilation standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
- The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
- 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). Draught stopping
- 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 tenants consider that the landlord has failed to comply with the HHS draught stopping standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
- 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). Moisture ingress and drainage
- 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 tenants consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
- The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
- 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).
- 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. Smoke alarms
- Pursuant to 45(1)(ab) of the RTA, a landlord must comply with all requirements in respect of smoke alarms imposed on the landlord by regulations.
- 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 evidence
- The tenants obtained a Healthy Homes Assessment from [Maintenance and repair company]. It concluded that the existing pink batt insulation was wet in several arears and was well under the required 120mm requirement. It concluded that the insulation was not in reasonable condition and that the underfloor insulation was not compliant with the Healthy Homes standards.
- In relation to the drainage and guttering at the property it concluded that this was not compliant with healthy home standards in that gutters and down pipes were not unobstructed and unblocked.
- It found that the polythene ground moisture barrier was not compliant with healthy home standards, or exempt, in that there was none.
- In relation to draught stopping, it found that the property was not compliant and referred to photographic evidence of gaps / holes. It concluded that there were noticeable draughts caused by gaps around the doors.
- In relation to ventilation, it concluded the property was non-compliant in that there was no externally vented extractor fan or compliant ventilation system in connection with the kitchen or the bathrooms.
- Regarding the heating, it found that the log burner was not in active use and that there were no service records available for the burner.
- It found that external paths and driveway services were not free from slippery conditions and moss.
- It found that there were inadequate smoke alarms.
- The landlord had referred to its own report from [Electrical Company] at the case management conference but, despite being directed to provide it, did not do so. Mrs Dave confirmed however that the report was in similar terms as the conclusions in the [Maintenance and repair company] report.
- She also advised that property is however now compliant, as of around May to June 2023. No invoices were provided in relation to any work that has been done to make the property compliant.
- There is no challenge to the tenant’s claims with respect to the healthy home standards. The landlord simply says however that the work has now been done and the property is compliant.
- I accept the findings of the [Maintenance and repair company] report and find that the tenants have established the property did not comply with the healthy homes standards and the respects identified by [Maintenance and repair company].
- I find that the landlord has committed separate unlawful acts in connection with the breaches of Healthy Homes Standards. Exemplary damages awarded in favour of tenants for breach of healthy home standards
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
- The landlord appears to have acted in blatant disregard of her obligations. She offers no real explanation as to why the property was not compliant. I have not even been provided with any evidence that the property is compliant at this point and it is of concern to me that further tenants may rent this property in a non- compliant condition.
- Any landlord in New Zealand must observe the healthy home standards. It is a basic feature of providing a healthy home that is safe for tenants. It is not appropriate for landlords to adopt a casual approach to compliance.
- I am concerned at the significant number of breaches.
- The issues with this property caused considerable distress to the tenants and I note that there were children resident at the property.
- I find that these sums ordered above by way of exemplary damages are all appropriate, taking into account the factors set out in 109(3) of the RTA. Bond not lodged
- The tenants say the bond was $5,200. They paid it direct to Mrs Tan, the owner. Mrs Dave said she had to pay it to the Bond centre, but Mrs Tan failed to do so.
- Mrs Dave said that once the rent was withheld, the landlord used it to pay her mortgage.
- I find that failing to lodge the bond was an unlawful act. Once again, I find that the landlord appears to have taken a casual approach to her obligations with respect to the bond. The bond is the tenant’s money. It is not appropriate to take that money and use it to pay a mortgage.
- I order the landlord to pay the tenants exemplary damages as ordered above. Rent
- The tenants reduced rent payments whilst they were living at the property.
- The landlord claims that the rent owing as at 14 August 2023 is $29,900 but no rent summary was provided.
- The tenants do not agree, and say that the correct amount of unpaid rent is $26,650.
- Mrs Dave indicates she was not responsible for rent collection and so is not in a position to comment on the quantum
- I accept the evidence of the tenants, that the amount of rent owing was $26,650, as at 12 August 2023.