What was Tenancy Tribunal case 4500920 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 4500920?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4500920?

The primary dispute was State of repair. Related themes: Leaks.

Where can I read the official tribunal order for case 4500920?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9004001-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4500920 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 4500920?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4500920?

The primary dispute was State of repair. Related themes: Leaks.

Where can I read the official tribunal order for case 4500920?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9004001-Tribunal_Order_Redacted.pdf.

1 Bishop Street, Epsom, Auckland 1023 Tenancy Tribunal Case 4500920 — State of repair

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1 Bishop Street, Epsom, Auckland 1023 Tenancy Tribunal Case 4500920 — State of repair | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $5,470.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing held on the 14 April 2023.
The house is a 4-bedroom villa in Epsom described in the advertisement for this tenancy as an executive family home. It has original (1913) and modernised features including a pool and spa pool.
The landlords have owned the property since 2000. They lived in the property for about 8 years with their family (approx. 2000-2008) when they moved to another town in New Zealand. The property has been tenanted since 2008. The landlords say that they regard the property as their family home and hope that they and or their children can move back into the property in the future.
The tenancy began on the 29 May 2021 and was for a fixed term until February 2022. At the beginning of the tenancy the tenants (who are a couple) lived in the property with another couple. The other couple moved out at the end of the fixed term and the tenants got in flatmates. The tenants occupy the master bedroom and use the ensuite in the master bedroom as their bathroom.
The landlord managed the property themselves from the beginning of the tenancy to February 17, 2023, when they appointed [The landlord’s agent] of [Property management company] as their property manager.
The tenants filed their application on the 10 February 2023. At that time they were still living in the property. The tenants then gave notice to leave the property and the tenancy ended on the 8 April 2023.
During the tenancy the parties corresponded with each other by email. My observation from reading all of the material provided by both parties is that during the period May 2021 to February 2022, the landlord and the tenants seemed to enjoy a good relationship. Most items that needed repair during this period were quickly remedied.
There were two issues at the tenancy which the tenant claims were not appropriately remedied during this time, the defects in the windows in the master bedroom and the condensation problems in the ensuite bathroom; and in May 2022 the tenant issued the landlord with a 14-day notice to remedy. This included the following requirements: • Remedy gaps and condensation to windows in Master Bedroom; • Remedy condensation on skylight in ensuite bathroom • Install extractor fan; • Provide dehumidifier; • Replace controller for central heating system.
The landlord completed work on all these issues. The tenants confirm that an extractor fan was install, a dehumidifier was provided, and the controller was replaced. However, the tenants claim that the issues with the windows in the master bedroom and the condensation in the bathroom was not remedied. The claims.
The tenants claim: a. That the landlords failed to maintain the following and or that these items do not meet the Healthy Homes Standards. • Windows in the master bedroom • Problems with the glass roof in the ensuite which caused heat loss. Condensation, dampness and mould. • Leaks in the lounge/ dining room causing mould. • The pool was left contaminated after the Anniversary weekend floods and could not be used. b. That the ensuite is not properly consented and therefore may be a breach of s45(1)(c) or make the property unlawful residential tenancy. c. That the landlord failed to provide the insurance policy when requested. d. That the landlord breached the tenant’s quiet enjoyment by giving out her personal details to tradesmen and allowing tradespeople to come onto the property without being accompanied by the owner or property manager.
The tenants claim compensation of $120 per week for the whole tenancy for the issues with the master bedroom windows and the ensuite bathroom. They also claim compensation of $250 per week for 11 weeks for the failure to maintain the pool. Making a total compensation sought of $11,060.00 1
The tenants also claim exemplary damages pursuant to s 45(1A), 45 (2D) and s38 Residential Tenancies Act 1986 (RTA) for breach of quite enjoyment.
Both parties provided extensive submissions, copies of their correspondence with each other and tradespeople, copies of correspondence with [The property manager]. I confirm that I have reviewed all of the material submitted before writing this decision.

Did the landlord fail to maintain the property?

Under s 45(1)(b) RTA landlords must maintain the premises in a reasonable state of repair. Section 45(1)(b) provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... 1 The tenancy lasted 100 weeks and 5 days. The amounts requested $120 per week and $250 for the pool for 11 weeks, are more than $11,060.00 but that it what the tenants have noted in their application. (b) 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...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 2 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...” 3
Landlords also have an obligation to repair things that are apparent from observation: 4 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... The windows in the master bedroom
I am satisfied that the landlord failed to maintain the windows in the master bedroom to a reasonable state of repair from May 2022 because: a) The Healthy Homes report which the landlord obtained in April 2021 showed a problem with a gap in these windows. Although the landlord did have their handyman install seals which the landlord thought had remedied the situation they were informed in April/ May 2022 that the windows were draughty with gaps. b) The photographs of the windows taken in or about July 2022 by the landlord’s own repairers show that there are gaps in the windows. c) The photographs taken of the outside of the windows show rot, gaps and the windows to be in an aged condition. I am satisfied that anyone 2 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 3 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 4 See n 5. inspecting these windows would have noticed the need for these windows to be replaced. d) The landlord’s own repairers recommended replacement of the windows. (July 2022) The landlord said that they could not afford find anyone to replace the window framing and had to budget for this extensive repair the windows and that is why they had not replaced the windows by the end of the tenancy. e) The house was advertised to the tenants as being an executive home, the tenants were paying executive level rent. A reasonable state of repair for this level of rental would certainly not allow for rotten windows with gaps in the master bedroom.
Having found that the landlord breached their obligations to the tenant I turn now to the issue of compensation. Compensation should restore a tenant to the position that they would have been in had the breach not occurred. The tenant has claimed $120.00 per week. This equates to 10% of the rent. The tenant says that the room was cold, and at times they needed to sleep in another bedroom. The tenant also says that the windows were a constant source of aggravation, in summer the gaps allowed insects into the room and the tenant was concerned about safety.
I accept that it would have been difficult to heat the room comfortably in winter, as any warm air would have escaped through gaps. I also accept that the lack of hinges of the window lead to an increased security risk which worried the tenants. However, I consider that 10% rent abatement too high. Instead, I have awarded the tenants 2 weeks rent $2400.00 which I consider appropriate. The condensation in the bathroom
I am not satisfied that the landlords failed to maintain the ensuite bathroom, I say this because: a) The test for failure to maintain takes into account the age and character of the home. Character includes design features of the home such as a glass ceiling in the bathroom. Glass ceilings will always mean some condensation, as will windows. Whilst this would have no doubt been irritating for the tenants to live with, there was no defect in the building, and as such there is no ‘repair’ that could be done by the landlord short of removing the glass ceiling and replacing it with another building material, which section 45(1)(b) does not anticipate requiring a landlord to do. A landlord would not for instance be required to install a skylight into a darkened hall or be required to install double glazed windows into a home where single glazed windows had been installed. b) The landlord offered solutions to the problems that the glass ceiling presented, including providing a Katcher window vacuum, installing a bigger extraction fan and providing a dehumidifier.
The tenants’ claim that the landlord failed to repair and maintain the glass ceiling in the bathroom is dismissed.
The tenants also claimed that the glass ceiling was not consented or did not meet building code and therefore would be a breach of s45(1)(c) RTA and was unlawful pursuant to s78A RTA. The landlords say that the glass ceiling is consented. They provided building plans (which were difficult to read) but suggest that the glass ceiling was shown on the consented building plans and therefore Council consent was obtained. The landlord say that all the extension was done pursuant to building consent and was inspected at the time of construction.
As the tenant is alleging the breach the tenant has the onus to prove on the balance of probabilities that the glass ceiling is unconsented, does not meet the building code and is therefore unlawful. The tenant has provided no evidence that supports that proposition. The tenant merely says that it believes it may not be consented and meet code. This seems founded on what a tradesperson (who did not give evidence at the hearing told the tenant).
The tenant says that they have requested further information from the landlord to show that it meets code. The tenants imply that if it did meet code then the landlord would readily provide this information and that the landlord’s failure to do so shows they are more than likely hiding that they don’t have consent or meet code. I disagree, the onus does not shift when a party requests further information. The tenants could have obtained this information from Auckland Council, in a LIM report or by inspection of the council files, as this information is a matter of public record, but did not do so. The tenants have not proven their claim and it is dismissed. Leaks in the lounge/ dining room causing mould.
The tenants claim that there were three instances of leaking in the ceiling between 2022 and 2023. The landlord claims that all the leaks have repaired in a reasonable time. There was no evidence that the tenants supplied that showed that the landlord’s took an unreasonable amount of time to repair the leaks. I therefore find that the landlords were not in breach of their obligations to repair the leaks.
The tenants say that they were left with damp carpet and holes in the ceiling, where they could see mould growing.
I am satisfied that the landlord did breach its obligation to fix the damage to the ceiling, which was caused by the leaks. The landlord says that it delayed the repair as it wanted to make sure that there were no further leaks. Whilst I accept that the landlords wanted to ensure that there was no further damage from latent leaks, the tenants were renting an ‘executive’ home and I do not consider that the appearance of holes in the ceiling consistent with an executive level home.
I also note that the holes in the ceiling showed mould growth. At the hearing the parties had said that the mould tested but there was no confirmation of the type of mould. The tenants should be able to expect no mould growth from leaks in their home, and that the cause of any mould growth would be quickly investigated and remedied.
I am satisfied that the landlord failed to repair the ceiling allowing mould to grow. I award the tenant $300.00 for this breach. The Pool
The pool was flooded as a result of the Anniversary weekend storms leaving sediment, and flood waters (possibly containing sewerage) in the pool. The tenants notified the landlord immediately. The landlord advised that they would get the pool cleaned. Because of the demand for these services in Auckland after the floods, the earliest that the landlord could get the pool cleaned was the 7 March 2023. After appointing the Property Manager on 7 February, the landlord believed that the property manager was organising to get the pool cleaned, and cancelled the clean. The landlord says that the Property Manager told them on the 28 February that the cost would be between $600-700 and they approved that cost. On the 15 March the landlord’s property manager advised them that the pool man could not clean the pool (having inspected it) and the landlord then got in touch with [a pool cleaning company] who reinstated the pool on the 3 April 2023.
The tenants says that they have been unable to use the pool throughout the summer. They say they have been paying for a pool that they cannot use.
The landlord says that although it had said that they would remedy the problem, the tenants could have mitigated the problem by putting chemicals into the pool and trying to clean it. I disagree, it is likely that if the tenants had tried to clean the pool with the equipment that they had that the equipment or the pool would have become damaged (the filters etc are not made to withstand the contents of the flooding). The landlord told the tenants that the landlord’s would clean the pool and the tenants were entitled to rely on that statement.
The tenants seek compensation of $250 per week for 11 weeks= $2750.00. They say that they were unable to use the pool over the time of the year where it would usually be used.
The landlord’s say that if compensation is to be awarded then it should be less that $250 per week (they say about $72.00 per week or 6% of the total rent) and should take into account the cost that the landlord incurred in repairing the pool.
Since the Christchurch earthquakes the Tribunal has had to grapple with lots of cases where there is a defect in the property, which is caused by a natural event and does not arise as a consequence of a breach by either party. Where the damage renders the property uninhabitable then the tenancy may terminate (see s59 RTA), but when the damage makes part of the property unusable, it is usual to abate the rent accordingly over that period. Taking into account the premium time of year that the pool was unusable, then I consider the amount of $150.00 per week to be a reasonable abatement of rent. Accordingly, the tenant is awarded $1650.00 in compensation. Swimming pool drain.
The tenants say that there has been a long-standing issue with the pool drain. There is no overfill drain on the pool and manual drain beside the pool house is too small to accommodate the size of the pool and spa. It can only drain for about 10 seconds at a time before it begins to overflow into the pool house. The tenants at first thought it was blocked and tried to remedy it, but the repair person told them it was a capacity issue.
The landlord says that the tenants notified them on the 18 June 2021 that the drain was blocked. Accordingly, the landlord sent [a drain unblocking company] to fix the issue of 28 July 2021. The tenants raised the issue again on the 9 November 2021, the landlords told the tenants that they thought the drain had been cleared and to let them know if there was a further problem. The landlord’s say that they heard nothing further from the tenants and therefore understood that it had been remedied.
The tenants again raised the issue on the 7 February 2022 and the landlord instructed [a drain unblocking company] to attend the property on the 8 February 2022. The landlord says that at all times that the tenants raised the issue they have responded in a timely manner.
I am not satisfied that the landlords have breached the provisions of s45(1)(b) in relation to the drains, because: a) There was no evidence that the landlord’s repairers did not fix the problem when asked. b) The tenants did not satisfy me that there was an ongoing defect that required repair. There was no evidence from a drainlayer saying that the drains were inadequate. The landlord’s obligation under s45(1)(b) is not absolute, it is qualified by the age and character pf the home. If the drainage was considered adequate at the time the pool was put in and met building codes, then it cannot be considered a defect.
The tenants claim for failure to maintain the swimming pool drain is not proven.

Should exemplary damages be awarded for failures to maintain?

Breaching s45(1)(b) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
In order to prove an unlawful act it must be shown that the landlord has acted with intention. The landlords say that they have not acted with intention because the did not intend to breach the RTA they say that they intended to repair the windows but were waiting for funds to do so, they say that they repaired the roof in a timely fashion and that the pool was a misunderstanding between their property manager and them.
In the case of TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the Judge said: “Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.” Para 37.
I am satisfied that the landlords acted with intention in respect of the lack of repair to the bedroom windows. They admitted at the hearing that their repairer had recommended a repair in July 2022 and that they had not done it or taken any steps toward it because it was on their ‘planned maintenance schedule’. Knowing that an item needs repair but failing to take any steps to remedy that repair in a timely fashion is an unlawful act.
When an unlawful act is committed the Tribunal must consider the intent, the effect of the act and effect on the other party, the public interest 5 . I have already awarded considerable compensation for this act which I consider restores the party to the position that they would have been in (thereby addressing the effects of the action and the effect on the other party). I therefore consider it appropriate to award the sum of $500 in exemplary damages for this breach, this reflects that ongoing nature of the problem, the fact that the tenants had to keep on addressing it, which took time and energy and the clear public interest that Parliament has signalled by the advent of the Healthy Homes Standards, that all tenants should have dry, warm, and secure homes to live in. I also have taken into account that the landlord did try to mitigate the problem (putting in seals) and did not merely turn a blind eye to it.
I do not consider that the landlords acted with intention in respect of the pool and holes in the ceiling. I consider that the pool was a genuine mix up between the landlord and their agent as to who was going to fix the pool and was further exacerbated by the demand for these services in Auckland.
I also understand that the landlord’s watch and wait approach to the leaks. The landlord’s wanted to see if the leaks were caused by the extreme weather Auckland has experienced or if they were an ongoing problem that would have 5 S109 RTA. required a much larger repair (such as replacement of that portion of the roof). I consider that it is not appropriate to award exemplary damages in those circumstances.

Did the landlord fail to provide the insurance policy when requested?

Section 45(2B) RTA provides: The landlord of premises that are insured may at any time and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises.
Failing to provide the insurance policy when requested is an unlawful act for which exemplary damages of up to $900 can be awarded (See s45(2D) RTA).
The tenant says that the landlord failed to provide the tenant with a copy of the insurance policy when they signed the 2021 agreement. However, the RTA does not provide that the landlord has to provide a copy of the insurance policy at that time (the word may is used in the Act). On the 30 January 2023 the tenants asked the landlord for the insurance policy, which was provided on the 8 March 2023. I do not consider 36 days to be an unreasonable time to provide those details.
On the 10 March 2023 the tenants asked for further details regarding the insurance, the landlords responded the next day asking the tenants why they wanted this further information. The tenants did not specifically answer that question.
The information requested by the tenants related to any changes in the policy. The landlord is obliged to inform the tenants of any changes to excess amounts. As the landlord had not told the tenants of any changes to the excess amounts, it must be assumed that those had not changed. The tenant did not advance any argument at hearing that the landlord had not complied with their requirements to provide correct details or changed details.
I therefore find that the landlord had complied with their obligation to provide the tenant with the insurance policy when asked, and there was no further requirement to provide details that the tenant already had relating to the insurance excess. The tenant’s claim that the landlord failed to comply with its insurance obligations is dismissed. Breaches of quiet enjoyment.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 6
The tenants claim that the landlord breached their quiet enjoyment in three ways: a) By expecting that the tenants allow the landlord’s tradespeople in their home, without the landlord or the landlord’s agent present. b) By providing their details to tradespersons even after the tenants specifically told the landlord to stop doing this. c) By constantly having to deal with repairs, tradespeople and report what had happened back to the landlord.
It is fair to say that much of the ‘dispute’ between the landlord and the tenant has been around the way that repairs and maintenance are carried out at the property. The landlords say that they have always allowed their previous tenants to work with their tradespeople to arrange suitable times for the tradespeople to come into the property. They say that this has been the preference of most of their previous tenants. The landlords also say that because they have owned the property for a long time they have trusted tradespeople that they have worked with and they use the same firms when repairs need to be done.
The tenants feel aggrieved as they say that they have had to take time off work to allow tradespeople into their home to fix items that need repair. They say that this is well above the usual amount of time needed, they say that landlord tries to repair items cheaply and this results in more repairs and more time off work. They say because of the nature and extent of repairs this has meant considerable time off work and inconvenience to them. Did the landlord breach the tenants’ quiet enjoyment by expecting tradespeople to be able to enter the home for the purposes of repair without the landlord or the Property

Manager being present?

I am not satisfied that the landlords breached the tenant’s quiet enjoyment by suggesting that tradespersons are allowed in the report without the tenant there. This is because the s48(2) (d)RTA allows a landlord to enter into the property for the purposes of repair provided that the landlord gives adequate notice.
At the hearing the tenants submitted that this section requires the landlord to accompany the tradespersons to the repair and that tradespeople can not attend on their own. The tenant submitted that although the definition of landlord in the 6 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. RTA includes the landlord’s agent where appropriate, the definition of agent does not anticipate that tradespeople can be the landlord’s agent.
The definition of agent in the RTA is agent, in relation to any person who is a landlord or a tenant, means an agent of that person in that person’s capacity as landlord or tenant; and includes an employee of that person in that person’s capacity as landlord or tenant. 7
I disagree with the tenants’ submission on the interpretation of the Act. An agency is formed when one party (the Principal) instructs another to do something on that Principals behalf, that the Principal is lawfully entitled to do. In this instance the landlord has instructed the tradespersons and given them full authority to enter the property and repair the work. There is nothing in the definition of agent in the RTA that prevents a limited agency being given from the landlord to the tradesperson. This is also supported by the fact that the landlord is liable for any actions carried out by the tradesperson at the premises. For instance, if the tradesperson swore at a tenant, whilst at the premises, then this would be a breach of the quiet enjoyment which the landlord would be liable for. 8
I do not consider that the tenant acted reasonably when insisting that the landlord or the property manager be present during the repairs, and consequently the landlord did not breach the tenants’ quiet enjoyment when they suggested the tradespeople attend without the tenant present. Did the landlord breach the tenants’ quiet enjoyment by providing the tenant’s details to the tradesperson and by requiring the tenant to deal with the tradespeople?
I am satisfied that the landlord breached the tenant’s quiet enjoyment by providing her personal details (telephone number) to tradespeople when the tenant had made it clear that she did not want this to occur. I am also satisfied that the nature and extent of the repairs throughout the tenancy which required the tenant’s attention, to notify, organise tradespeople and provide a report to the landlord was well above a level that the normal tenant would be expected to endure, Whilst the landlord submitted that the tenants preferred it that way, I disagree; the landlords gave the tenants no choice, and I find that the landlord’s decision to ask the tenants to engage in this process was more likely motivated by the landlord’s convenience rather than the landlord’s concern for the tenant’s welfare. I say this because even when the tenant complained about the amount of time that they were taking off work to deal with the issues, the landlord made no real effort to 7 Section 2 RTA. 8 The liability of the landlord for tradespersons actions at the premises was accepted by the tenant at the hearing. come to the property to deal with those issues themselves until they appointed a property manager in February 2023.
The tenants had made it clear by the end of 2022 that they did not want the landlord to give out their personal details, and yet the landlord gave those details out to tradespeople in February 2023.
Whilst I consider this a breach of the tenant’s quiet enjoyment. I do not consider that the nature and extent of the breach constitutes harassment. I say this because whilst the tenant may have felt distressed and worn out by the breach, I do not consider that that was the landlord’s intention. I consider the landlord was motivated by convenience to themselves rather than a nefarious intent towards the tenant.
I consider an award of compensation to be an appropriate remedy for the landlord’s breach. Taking into account the nature and extent of the breach I award the tenant $600.00 for this breach. The Filing Fee
As the tenant has been partially successful, I award the tenant the filing fee. Name Suppression
As both parties have been somewhat successful (the tenants in approving the claims and the landlord in defending some claims) then I suppress both the landlord and the tenants’ names. The decision may be published as there is considerable public interest in the public understanding how disputes are (especially disputes that have partially arisen because of the severe weather events in Auckland) are determined.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $5,470.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing held on the 14 April 2023.
The house is a 4-bedroom villa in Epsom described in the advertisement for this tenancy as an executive family home. It has original (1913) and modernised features including a pool and spa pool.
The landlords have owned the property since 2000. They lived in the property for about 8 years with their family (approx. 2000-2008) when they moved to another town in New Zealand. The property has been tenanted since 2008. The landlords say that they regard the property as their family home and hope that they and or their children can move back into the property in the future.
The tenancy began on the 29 May 2021 and was for a fixed term until February 2022. At the beginning of the tenancy the tenants (who are a couple) lived in the property with another couple. The other couple moved out at the end of the fixed term and the tenants got in flatmates. The tenants occupy the master bedroom and use the ensuite in the master bedroom as their bathroom.
The landlord managed the property themselves from the beginning of the tenancy to February 17, 2023, when they appointed [The landlord’s agent] of [Property management company] as their property manager.
The tenants filed their application on the 10 February 2023. At that time they were still living in the property. The tenants then gave notice to leave the property and the tenancy ended on the 8 April 2023.
During the tenancy the parties corresponded with each other by email. My observation from reading all of the material provided by both parties is that during the period May 2021 to February 2022, the landlord and the tenants seemed to enjoy a good relationship. Most items that needed repair during this period were quickly remedied.
There were two issues at the tenancy which the tenant claims were not appropriately remedied during this time, the defects in the windows in the master bedroom and the condensation problems in the ensuite bathroom; and in May 2022 the tenant issued the landlord with a 14-day notice to remedy. This included the following requirements: • Remedy gaps and condensation to windows in Master Bedroom; • Remedy condensation on skylight in ensuite bathroom • Install extractor fan; • Provide dehumidifier; • Replace controller for central heating system.
The landlord completed work on all these issues. The tenants confirm that an extractor fan was install, a dehumidifier was provided, and the controller was replaced. However, the tenants claim that the issues with the windows in the master bedroom and the condensation in the bathroom was not remedied. The claims.
The tenants claim: a. That the landlords failed to maintain the following and or that these items do not meet the Healthy Homes Standards. • Windows in the master bedroom • Problems with the glass roof in the ensuite which caused heat loss. Condensation, dampness and mould. • Leaks in the lounge/ dining room causing mould. • The pool was left contaminated after the Anniversary weekend floods and could not be used. b. That the ensuite is not properly consented and therefore may be a breach of s45(1)(c) or make the property unlawful residential tenancy. c. That the landlord failed to provide the insurance policy when requested. d. That the landlord breached the tenant’s quiet enjoyment by giving out her personal details to tradesmen and allowing tradespeople to come onto the property without being accompanied by the owner or property manager.
The tenants claim compensation of $120 per week for the whole tenancy for the issues with the master bedroom windows and the ensuite bathroom. They also claim compensation of $250 per week for 11 weeks for the failure to maintain the pool. Making a total compensation sought of $11,060.00 1
The tenants also claim exemplary damages pursuant to s 45(1A), 45 (2D) and s38 Residential Tenancies Act 1986 (RTA) for breach of quite enjoyment.
Both parties provided extensive submissions, copies of their correspondence with each other and tradespeople, copies of correspondence with [The property manager]. I confirm that I have reviewed all of the material submitted before writing this decision.

Did the landlord fail to maintain the property?

Under s 45(1)(b) RTA landlords must maintain the premises in a reasonable state of repair. Section 45(1)(b) provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... 1 The tenancy lasted 100 weeks and 5 days. The amounts requested $120 per week and $250 for the pool for 11 weeks, are more than $11,060.00 but that it what the tenants have noted in their application. (b) 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...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 2 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...” 3
Landlords also have an obligation to repair things that are apparent from observation: 4 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... The windows in the master bedroom
I am satisfied that the landlord failed to maintain the windows in the master bedroom to a reasonable state of repair from May 2022 because: a) The Healthy Homes report which the landlord obtained in April 2021 showed a problem with a gap in these windows. Although the landlord did have their handyman install seals which the landlord thought had remedied the situation they were informed in April/ May 2022 that the windows were draughty with gaps. b) The photographs of the windows taken in or about July 2022 by the landlord’s own repairers show that there are gaps in the windows. c) The photographs taken of the outside of the windows show rot, gaps and the windows to be in an aged condition. I am satisfied that anyone 2 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 3 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 4 See n 5. inspecting these windows would have noticed the need for these windows to be replaced. d) The landlord’s own repairers recommended replacement of the windows. (July 2022) The landlord said that they could not afford find anyone to replace the window framing and had to budget for this extensive repair the windows and that is why they had not replaced the windows by the end of the tenancy. e) The house was advertised to the tenants as being an executive home, the tenants were paying executive level rent. A reasonable state of repair for this level of rental would certainly not allow for rotten windows with gaps in the master bedroom.
Having found that the landlord breached their obligations to the tenant I turn now to the issue of compensation. Compensation should restore a tenant to the position that they would have been in had the breach not occurred. The tenant has claimed $120.00 per week. This equates to 10% of the rent. The tenant says that the room was cold, and at times they needed to sleep in another bedroom. The tenant also says that the windows were a constant source of aggravation, in summer the gaps allowed insects into the room and the tenant was concerned about safety.
I accept that it would have been difficult to heat the room comfortably in winter, as any warm air would have escaped through gaps. I also accept that the lack of hinges of the window lead to an increased security risk which worried the tenants. However, I consider that 10% rent abatement too high. Instead, I have awarded the tenants 2 weeks rent $2400.00 which I consider appropriate. The condensation in the bathroom
I am not satisfied that the landlords failed to maintain the ensuite bathroom, I say this because: a) The test for failure to maintain takes into account the age and character of the home. Character includes design features of the home such as a glass ceiling in the bathroom. Glass ceilings will always mean some condensation, as will windows. Whilst this would have no doubt been irritating for the tenants to live with, there was no defect in the building, and as such there is no ‘repair’ that could be done by the landlord short of removing the glass ceiling and replacing it with another building material, which section 45(1)(b) does not anticipate requiring a landlord to do. A landlord would not for instance be required to install a skylight into a darkened hall or be required to install double glazed windows into a home where single glazed windows had been installed. b) The landlord offered solutions to the problems that the glass ceiling presented, including providing a Katcher window vacuum, installing a bigger extraction fan and providing a dehumidifier.
The tenants’ claim that the landlord failed to repair and maintain the glass ceiling in the bathroom is dismissed.
The tenants also claimed that the glass ceiling was not consented or did not meet building code and therefore would be a breach of s45(1)(c) RTA and was unlawful pursuant to s78A RTA. The landlords say that the glass ceiling is consented. They provided building plans (which were difficult to read) but suggest that the glass ceiling was shown on the consented building plans and therefore Council consent was obtained. The landlord say that all the extension was done pursuant to building consent and was inspected at the time of construction.
As the tenant is alleging the breach the tenant has the onus to prove on the balance of probabilities that the glass ceiling is unconsented, does not meet the building code and is therefore unlawful. The tenant has provided no evidence that supports that proposition. The tenant merely says that it believes it may not be consented and meet code. This seems founded on what a tradesperson (who did not give evidence at the hearing told the tenant).
The tenant says that they have requested further information from the landlord to show that it meets code. The tenants imply that if it did meet code then the landlord would readily provide this information and that the landlord’s failure to do so shows they are more than likely hiding that they don’t have consent or meet code. I disagree, the onus does not shift when a party requests further information. The tenants could have obtained this information from Auckland Council, in a LIM report or by inspection of the council files, as this information is a matter of public record, but did not do so. The tenants have not proven their claim and it is dismissed. Leaks in the lounge/ dining room causing mould.
The tenants claim that there were three instances of leaking in the ceiling between 2022 and 2023. The landlord claims that all the leaks have repaired in a reasonable time. There was no evidence that the tenants supplied that showed that the landlord’s took an unreasonable amount of time to repair the leaks. I therefore find that the landlords were not in breach of their obligations to repair the leaks.
The tenants say that they were left with damp carpet and holes in the ceiling, where they could see mould growing.
I am satisfied that the landlord did breach its obligation to fix the damage to the ceiling, which was caused by the leaks. The landlord says that it delayed the repair as it wanted to make sure that there were no further leaks. Whilst I accept that the landlords wanted to ensure that there was no further damage from latent leaks, the tenants were renting an ‘executive’ home and I do not consider that the appearance of holes in the ceiling consistent with an executive level home.
I also note that the holes in the ceiling showed mould growth. At the hearing the parties had said that the mould tested but there was no confirmation of the type of mould. The tenants should be able to expect no mould growth from leaks in their home, and that the cause of any mould growth would be quickly investigated and remedied.
I am satisfied that the landlord failed to repair the ceiling allowing mould to grow. I award the tenant $300.00 for this breach. The Pool
The pool was flooded as a result of the Anniversary weekend storms leaving sediment, and flood waters (possibly containing sewerage) in the pool. The tenants notified the landlord immediately. The landlord advised that they would get the pool cleaned. Because of the demand for these services in Auckland after the floods, the earliest that the landlord could get the pool cleaned was the 7 March 2023. After appointing the Property Manager on 7 February, the landlord believed that the property manager was organising to get the pool cleaned, and cancelled the clean. The landlord says that the Property Manager told them on the 28 February that the cost would be between $600-700 and they approved that cost. On the 15 March the landlord’s property manager advised them that the pool man could not clean the pool (having inspected it) and the landlord then got in touch with [a pool cleaning company] who reinstated the pool on the 3 April 2023.
The tenants says that they have been unable to use the pool throughout the summer. They say they have been paying for a pool that they cannot use.
The landlord says that although it had said that they would remedy the problem, the tenants could have mitigated the problem by putting chemicals into the pool and trying to clean it. I disagree, it is likely that if the tenants had tried to clean the pool with the equipment that they had that the equipment or the pool would have become damaged (the filters etc are not made to withstand the contents of the flooding). The landlord told the tenants that the landlord’s would clean the pool and the tenants were entitled to rely on that statement.
The tenants seek compensation of $250 per week for 11 weeks= $2750.00. They say that they were unable to use the pool over the time of the year where it would usually be used.
The landlord’s say that if compensation is to be awarded then it should be less that $250 per week (they say about $72.00 per week or 6% of the total rent) and should take into account the cost that the landlord incurred in repairing the pool.
Since the Christchurch earthquakes the Tribunal has had to grapple with lots of cases where there is a defect in the property, which is caused by a natural event and does not arise as a consequence of a breach by either party. Where the damage renders the property uninhabitable then the tenancy may terminate (see s59 RTA), but when the damage makes part of the property unusable, it is usual to abate the rent accordingly over that period. Taking into account the premium time of year that the pool was unusable, then I consider the amount of $150.00 per week to be a reasonable abatement of rent. Accordingly, the tenant is awarded $1650.00 in compensation. Swimming pool drain.
The tenants say that there has been a long-standing issue with the pool drain. There is no overfill drain on the pool and manual drain beside the pool house is too small to accommodate the size of the pool and spa. It can only drain for about 10 seconds at a time before it begins to overflow into the pool house. The tenants at first thought it was blocked and tried to remedy it, but the repair person told them it was a capacity issue.
The landlord says that the tenants notified them on the 18 June 2021 that the drain was blocked. Accordingly, the landlord sent [a drain unblocking company] to fix the issue of 28 July 2021. The tenants raised the issue again on the 9 November 2021, the landlords told the tenants that they thought the drain had been cleared and to let them know if there was a further problem. The landlord’s say that they heard nothing further from the tenants and therefore understood that it had been remedied.
The tenants again raised the issue on the 7 February 2022 and the landlord instructed [a drain unblocking company] to attend the property on the 8 February 2022. The landlord says that at all times that the tenants raised the issue they have responded in a timely manner.
I am not satisfied that the landlords have breached the provisions of s45(1)(b) in relation to the drains, because: a) There was no evidence that the landlord’s repairers did not fix the problem when asked. b) The tenants did not satisfy me that there was an ongoing defect that required repair. There was no evidence from a drainlayer saying that the drains were inadequate. The landlord’s obligation under s45(1)(b) is not absolute, it is qualified by the age and character pf the home. If the drainage was considered adequate at the time the pool was put in and met building codes, then it cannot be considered a defect.
The tenants claim for failure to maintain the swimming pool drain is not proven.

Should exemplary damages be awarded for failures to maintain?

Breaching s45(1)(b) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
In order to prove an unlawful act it must be shown that the landlord has acted with intention. The landlords say that they have not acted with intention because the did not intend to breach the RTA they say that they intended to repair the windows but were waiting for funds to do so, they say that they repaired the roof in a timely fashion and that the pool was a misunderstanding between their property manager and them.
In the case of TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the Judge said: “Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.” Para 37.
I am satisfied that the landlords acted with intention in respect of the lack of repair to the bedroom windows. They admitted at the hearing that their repairer had recommended a repair in July 2022 and that they had not done it or taken any steps toward it because it was on their ‘planned maintenance schedule’. Knowing that an item needs repair but failing to take any steps to remedy that repair in a timely fashion is an unlawful act.
When an unlawful act is committed the Tribunal must consider the intent, the effect of the act and effect on the other party, the public interest 5 . I have already awarded considerable compensation for this act which I consider restores the party to the position that they would have been in (thereby addressing the effects of the action and the effect on the other party). I therefore consider it appropriate to award the sum of $500 in exemplary damages for this breach, this reflects that ongoing nature of the problem, the fact that the tenants had to keep on addressing it, which took time and energy and the clear public interest that Parliament has signalled by the advent of the Healthy Homes Standards, that all tenants should have dry, warm, and secure homes to live in. I also have taken into account that the landlord did try to mitigate the problem (putting in seals) and did not merely turn a blind eye to it.
I do not consider that the landlords acted with intention in respect of the pool and holes in the ceiling. I consider that the pool was a genuine mix up between the landlord and their agent as to who was going to fix the pool and was further exacerbated by the demand for these services in Auckland.
I also understand that the landlord’s watch and wait approach to the leaks. The landlord’s wanted to see if the leaks were caused by the extreme weather Auckland has experienced or if they were an ongoing problem that would have 5 S109 RTA. required a much larger repair (such as replacement of that portion of the roof). I consider that it is not appropriate to award exemplary damages in those circumstances.

Did the landlord fail to provide the insurance policy when requested?

Section 45(2B) RTA provides: The landlord of premises that are insured may at any time and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises.
Failing to provide the insurance policy when requested is an unlawful act for which exemplary damages of up to $900 can be awarded (See s45(2D) RTA).
The tenant says that the landlord failed to provide the tenant with a copy of the insurance policy when they signed the 2021 agreement. However, the RTA does not provide that the landlord has to provide a copy of the insurance policy at that time (the word may is used in the Act). On the 30 January 2023 the tenants asked the landlord for the insurance policy, which was provided on the 8 March 2023. I do not consider 36 days to be an unreasonable time to provide those details.
On the 10 March 2023 the tenants asked for further details regarding the insurance, the landlords responded the next day asking the tenants why they wanted this further information. The tenants did not specifically answer that question.
The information requested by the tenants related to any changes in the policy. The landlord is obliged to inform the tenants of any changes to excess amounts. As the landlord had not told the tenants of any changes to the excess amounts, it must be assumed that those had not changed. The tenant did not advance any argument at hearing that the landlord had not complied with their requirements to provide correct details or changed details.
I therefore find that the landlord had complied with their obligation to provide the tenant with the insurance policy when asked, and there was no further requirement to provide details that the tenant already had relating to the insurance excess. The tenant’s claim that the landlord failed to comply with its insurance obligations is dismissed. Breaches of quiet enjoyment.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 6
The tenants claim that the landlord breached their quiet enjoyment in three ways: a) By expecting that the tenants allow the landlord’s tradespeople in their home, without the landlord or the landlord’s agent present. b) By providing their details to tradespersons even after the tenants specifically told the landlord to stop doing this. c) By constantly having to deal with repairs, tradespeople and report what had happened back to the landlord.
It is fair to say that much of the ‘dispute’ between the landlord and the tenant has been around the way that repairs and maintenance are carried out at the property. The landlords say that they have always allowed their previous tenants to work with their tradespeople to arrange suitable times for the tradespeople to come into the property. They say that this has been the preference of most of their previous tenants. The landlords also say that because they have owned the property for a long time they have trusted tradespeople that they have worked with and they use the same firms when repairs need to be done.
The tenants feel aggrieved as they say that they have had to take time off work to allow tradespeople into their home to fix items that need repair. They say that this is well above the usual amount of time needed, they say that landlord tries to repair items cheaply and this results in more repairs and more time off work. They say because of the nature and extent of repairs this has meant considerable time off work and inconvenience to them. Did the landlord breach the tenants’ quiet enjoyment by expecting tradespeople to be able to enter the home for the purposes of repair without the landlord or the Property

Manager being present?

I am not satisfied that the landlords breached the tenant’s quiet enjoyment by suggesting that tradespersons are allowed in the report without the tenant there. This is because the s48(2) (d)RTA allows a landlord to enter into the property for the purposes of repair provided that the landlord gives adequate notice.
At the hearing the tenants submitted that this section requires the landlord to accompany the tradespersons to the repair and that tradespeople can not attend on their own. The tenant submitted that although the definition of landlord in the 6 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. RTA includes the landlord’s agent where appropriate, the definition of agent does not anticipate that tradespeople can be the landlord’s agent.
The definition of agent in the RTA is agent, in relation to any person who is a landlord or a tenant, means an agent of that person in that person’s capacity as landlord or tenant; and includes an employee of that person in that person’s capacity as landlord or tenant. 7
I disagree with the tenants’ submission on the interpretation of the Act. An agency is formed when one party (the Principal) instructs another to do something on that Principals behalf, that the Principal is lawfully entitled to do. In this instance the landlord has instructed the tradespersons and given them full authority to enter the property and repair the work. There is nothing in the definition of agent in the RTA that prevents a limited agency being given from the landlord to the tradesperson. This is also supported by the fact that the landlord is liable for any actions carried out by the tradesperson at the premises. For instance, if the tradesperson swore at a tenant, whilst at the premises, then this would be a breach of the quiet enjoyment which the landlord would be liable for. 8
I do not consider that the tenant acted reasonably when insisting that the landlord or the property manager be present during the repairs, and consequently the landlord did not breach the tenants’ quiet enjoyment when they suggested the tradespeople attend without the tenant present. Did the landlord breach the tenants’ quiet enjoyment by providing the tenant’s details to the tradesperson and by requiring the tenant to deal with the tradespeople?
I am satisfied that the landlord breached the tenant’s quiet enjoyment by providing her personal details (telephone number) to tradespeople when the tenant had made it clear that she did not want this to occur. I am also satisfied that the nature and extent of the repairs throughout the tenancy which required the tenant’s attention, to notify, organise tradespeople and provide a report to the landlord was well above a level that the normal tenant would be expected to endure, Whilst the landlord submitted that the tenants preferred it that way, I disagree; the landlords gave the tenants no choice, and I find that the landlord’s decision to ask the tenants to engage in this process was more likely motivated by the landlord’s convenience rather than the landlord’s concern for the tenant’s welfare. I say this because even when the tenant complained about the amount of time that they were taking off work to deal with the issues, the landlord made no real effort to 7 Section 2 RTA. 8 The liability of the landlord for tradespersons actions at the premises was accepted by the tenant at the hearing. come to the property to deal with those issues themselves until they appointed a property manager in February 2023.
The tenants had made it clear by the end of 2022 that they did not want the landlord to give out their personal details, and yet the landlord gave those details out to tradespeople in February 2023.
Whilst I consider this a breach of the tenant’s quiet enjoyment. I do not consider that the nature and extent of the breach constitutes harassment. I say this because whilst the tenant may have felt distressed and worn out by the breach, I do not consider that that was the landlord’s intention. I consider the landlord was motivated by convenience to themselves rather than a nefarious intent towards the tenant.
I consider an award of compensation to be an appropriate remedy for the landlord’s breach. Taking into account the nature and extent of the breach I award the tenant $600.00 for this breach. The Filing Fee
As the tenant has been partially successful, I award the tenant the filing fee. Name Suppression
As both parties have been somewhat successful (the tenants in approving the claims and the landlord in defending some claims) then I suppress both the landlord and the tenants’ names. The decision may be published as there is considerable public interest in the public understanding how disputes are (especially disputes that have partially arisen because of the severe weather events in Auckland) are determined.

Tenancy Tribunal case 4500920 — State of repair at 1 Bishop Street, Epsom, Auckland 1023

Tenancy Tribunal case 4500920 — State of repair at 1 Bishop Street, Epsom, Auckland 1023

Order

Reasons

Did the landlord fail to maintain the property?

Should exemplary damages be awarded for failures to maintain?

Did the landlord fail to provide the insurance policy when requested?

Manager being present?

Order

Reasons

Did the landlord fail to maintain the property?

Should exemplary damages be awarded for failures to maintain?

Did the landlord fail to provide the insurance policy when requested?

Manager being present?