What was Tenancy Tribunal case 4515289 about?

The tribunal order states: Jill and Murray O’Brien must pay [The tenant/s] $3,323.94 immediately,

How much money was awarded in case 4515289?

Compensation: Loss Of Amenity: $2,250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; For Door: $1,053.50 awarded to tenant

What type of tenancy dispute was case 4515289?

The dispute type was not classified.

Where can I read the official tribunal order for case 4515289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9224884-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4515289 about?

The tribunal order states: Jill and Murray O’Brien must pay [The tenant/s] $3,323.94 immediately,

How much money was awarded in case 4515289?

Compensation: Loss Of Amenity: $2,250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; For Door: $1,053.50 awarded to tenant

What type of tenancy dispute was case 4515289?

The dispute type was not classified.

Where can I read the official tribunal order for case 4515289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9224884-Tenancy_Tribunal_Order.pdf.

4 Bonita Avenue, Stanmore Bay, Whangaparaoa 0932 Tenancy Tribunal Case 4515289 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4515289 — net $3,323.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
for door	$1,053.50	for door
Compensation: Loss of Amenity	$2,250.00	Loss of Amenity
Filing Fee	$20.44	Filing Fee
Net award	$3,323.94
Total payable by Landlord to Tenant	$3,323.94

Claims and awards in Tenancy Tribunal application 4515289 — net $3,323.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
for door	$1,053.50	for door
Compensation: Loss of Amenity	$2,250.00	Loss of Amenity
Filing Fee	$20.44	Filing Fee
Net award	$3,323.94
Total payable by Landlord to Tenant	$3,323.94

Order

Jill and Murray O’Brien must pay [The tenant/s] $3,323.94 immediately, calculated as shown in the table below.
The Bond Centre must refund the bond of $66.50 (5896356-001) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. Crystal Gray appeared as the representative for the tenant. Linda Hui and Oliver Flodsmith-Ryan appeared as Counsel for Hibiscus Property Managers Ltd. The owners Jill and Murray O’Brien were also present, as was Cherry Gilbert who is a senior property manager.
I note that Hibiscus Property Managers Ltd are a Ray White agency but for the purposes of this decision I refer to them as “Hibiscus”.
This is a tenant application against the landlord. DescriptionLandlordTenant Refund of bond (less $200 for door)$1,053.50 Compensation: Loss of Amenity$2,250.00 Filing Fee$20.44 Total Payable by Landlord to Tenant$3,323.94
The tenant seeks refund of her bond and seeks compensation for a variety of issues. The tenant also seeks reimbursement of the filing fee.
The claims noted on the written application included the following: • The property had no heating, insulation, ventilation, no moisture draught stopping. • Ray and White have not provided Residential Tenancy Act 1986 • Health Act 1956 • Housing improvement • Residential tenancy health homes standards, regulations • Professional conduct & client care 2012 • We want to claim justice for Mr R and Ms R • Five years rent back 114,000 • Confiscation for 100,000 each • For Ms R and Mr R, for death, unhealthy home relations
As I explained at the outset of the hearing, the Tribunal only has jurisdiction to deal with disputes between landlords and tenants under the Residential Tenancies Act 1986 (“the Act”).
Many of the issues raised in the written application are therefore not ones over which I have any power to adjudicate.
This includes any claims to do with wrongful death, breaches of the Health Act, breaches of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, or breaches of the Human Rights Act.
While Hibiscus had legal Counsel to represent them, neither the owners nor the tenant were in that position. The owners represented their own position. Ms Gray is not legally trained but nevertheless did her best to represent her friend.
I explained to Ms Gray that while the issues raised in relation to the property itself were able to be considered, strictly speaking the Healthy Homes Standards (“HHS”) were not relevant to this tenancy. That is because those standards only apply to new or renewed tenancies after 1 July 2021. This tenancy commenced in 2017.
However, the claims can still be considered under the general provisions of section 45 of the Act which outline a landlord’s general obligations.
I therefore approach the tenant’s claim as one alleging a failure to maintain the premises in a reasonable state of repair (section 45(1)(b)) and/or a failure to comply with all requirements in respect of buildings, health, and safety under any enactment (section 45(1)(c)). The tenant also seeks refund of her bond. General Approach in the Tribunal
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
In this case, there was an abundance of documentary evidence on both sides. In addition, there was a reasonably lengthy hearing with several witnesses. For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Preliminary Issue: Agency
Before moving on to deal with the substantive claims, there is a preliminary issue that has been raised by Hibiscus.
They seek that the claim made against Hibiscus Property Managers Limited be struck out for want of jurisdiction. They say that they are not the “landlord” for the purposes of these proceedings and have no personal liability towards the tenants.
In this case, the application filed in the Tribunal is clearly filed against “Hibiscus Property Managers Limited as agent for Jill and Murray O’Brien”. There is no suggestion that the application is being brought personally against Hibiscus.
Similarly, the tenancy agreement is signed by Kylie Simpson, an employee of Hibiscus. This contract has clearly been entered into with Hibiscus as agent for the landlord and the landlord (Jill and Murray O’Brien) is clearly identified in the agreement.
Hibiscus were clearly acting as an intermediary or agent and have no personal liability in this matter.
Therefore, any liability that might arise in this case is ultimately attached to Mr and Mrs O’Brien.
For the sake of clarity however, I have made the orders directly against Mr and Mrs O’Brien, who were also in attendance and had an opportunity to be heard.
If, as a result of these proceedings, there are issues as between Mr and Mrs O’Brien and Hibiscus, then they will have to be addressed in a different forum. Summary of Evidence
As noted above, there was significant evidence on both sides. What follows is a brief summary.
This tenancy commenced in 2017. As time went on the Ms Gray described issues evident particularly with the framing and joinery. Photographs have also been provided that show the state of the premises. This includes significant gaps in window frames and mould.
After approximately 1½ years in the property, the Ms Gray said they had more major issues. The property manager at the time was Caroline, and she did do regular inspections.
There were issues with a leak in the roof which first occurred in 2019, with the roof finally being replaced in 2021.
At each inspection, requests were made to fix the premises, particularly the joinery but increasingly also the mould. There was insufficient heating in the property, and none in the living areas. The tenants and the tenants ended up sleeping in the lounge and barely used the bedrooms as they were always cold. Witness: Christopher John Rowan (son of tenants):
Because his parents were elderly, the witness did a lot for them and has tried to assist them with this dispute.
The witness observed the damp patch on the ceiling of the lounge. He was present for around 5-6 of the inspections during the course of the tenancy.
He heard his parents convey their concerns to the property manager and says the property managers were “well aware” that the window joinery was rotten, and paint was peeling off in many places. There was also a crack in one of the windows that took 1½ years to be repaired in smaller bedroom.
There were significant gaps in several areas which meant the property was cold and draughty. His parents were not able to properly heat the bedrooms and so slept in the lounge most of the time.
Witness observed mould throughout the house. His father died in October 2021 and as far as he was aware there was only one inspection following his father’s death.
He knows that the property manager did visit his mother shortly after his father died and brought some soup and bread.
Shortly after the inspection in March 2022 his mother received a notice to vacate.
Witness was not present for the final inspection. Says that he has noticed his Mum’s breathing is much better since she has moved.
Under cross-examination, the witness said that he visited his parents regularly, and stayed there sometimes especially during COVID and as his parents’ health declined.
He thinks he first noticed the damp ceiling in 2019, maybe earlier. It may have been there from start of the tenancy. He doesn’t remember it ever not being there but cannot date it per se.
He said he had a conversation with the owners after the roof was replaced, it was the only time he recalled meeting them. In relation to roof replacement, he thinks this was done in 2021. He has no recollection of any temporary roof repairs being done in 2020.
He said that the crack in the bedroom window happened while the roof was being replaced. He believed it was caused by high winds blowing some scrap metal into the window. He says he did not attempt to replace the window himself because of the poor state of the joinery.
He recalled the March 2022 inspection where there was a discussion about the broken window. He says his understanding was that the owners were apparently trying to find a window that fit the space. In any event, it was never repaired.
He said that the final inspection was done without him being present. He then got a stack of mail which included all the bond information and saw that the owners were claiming compensation for two doors. The witness said that he told Hibiscus that one of the doors was his responsibility but that the other had been damaged by a tradesperson who had been fitting a hot water cylinder into the bathroom.
He said that despite this, the owners went ahead and got his Mum’s bond money refunded to them.
Under cross-examination he agreed that he had not seen the damage done by the tradesperson directly, but that his mother had told him that was how the damage occurred. Witness: [The tenant/s] (tenant)
Witness says there was an issue with a leak early on. There was a visible hole in the ceiling of the lounge. She first started noticing the damp ceiling not long after they moved in and told Caroline. Caroline just told the witness to keep an eye on it.
The owner came (Murray) and had a look but didn’t do anything further. It eventually leaked and so witness’s husband put a patch over it. Although the roof eventually got replaced the ceiling never got repaired, witness does not know why this is.
Witness first started noticing mould becoming problematic in the second year. She spoke to Caroline about it. Witness said that Caroline suggested the property was not being ventilated properly. Witness said that she did have to use a clothes dryer because she is not mobile and cannot hang washing outside. However, witness stated that she always properly ventilated by opening the back door every single time the dryer was in use. She said the back door was approximately three steps away from the dryer and it was open every time, come rain, hail or shine.
There was also mould in the bathroom and especially on the bathroom walls. There is no extractor fan in there. There was a mall window above the toilet which was permanently open in an attempt to ventilate.
One of the problems was that the joinery was in poor condition, and everything was very stiff, so that it was very difficult to open windows in the premises. For example, the witness said that every time she cooked, she would open the window by the stove. But then in order to close the window she would have to go outside and push it in.
The witness said that the windows were a constant problem as hardly any of them opened properly. When it was wet, the joinery would swell which made it even harder.
The witness said the house was very cold and the only heating was a wall heater between the two bedrooms. There was no heating in the living room or lounge area.
There was a wall heater between the two bedrooms.
However, the lounge was still warmer in there than the bedrooms, so witness says she and her husband usually slept in the lounge.
The witness was not cross-examined. Other Statements
There were other written statements provided by Nikkita Elliot (neighbour), Kenneth Rowan (eldest son of the tenants), and Wayne Wakefield (friend).
These were in quite broad in scope but tended to support the overall contention that the property was very cold and often damp and mouldy, with very little maintenance carried out over the years other than a roof replacement. Photographs
The photographs provided by the tenant show the following. a. timber joinery that is clearly old, with mould in numerous areas, gaps in windows and shrubbery/trees growing right up to the house b. an obvious broken window which is on a window where there is also a significant gap between the window frame and the internal sill. c. Peeling wallpaper with evident mould d. Rotting timber in some window frames e. Black mould in some window frames (not the kind that could be wiped, the kind that would need a toothbrush to remove and would likely take the paint off if attempted) f. Large hole in ceiling with surrounding mould Landlord Reply
Hibiscus says that there were regular 3-monthly inspections, save for lockdowns. Emails were sent to the tenants as well identifying various issues.
Hibiscus has provided copies of the inspection reports from July 2017 to March 2022.
Apart from that, Hibiscus denies any allegations in respect of mould or failure to repair. Mr and Mrs O’Brien similarly deny any breach of landlord obligations and say that if they were made aware of any issues, repairs were undertaken as soon as reasonably practicable.
Regarding the bond, the owner’s position is that the tenants were responsible for damage to two doors and that after trying to contact the tenants several times they sent a single party bond claim to the Bond Centre. As a result, $1,253.50 from the bond was refunded to the landlord.
The owners say that there is a heater at the property, which is a 2kw wall panel heater which is in working order.
The owners say that the windows and doors were in working order so that the property should have been easy to ventilate at any time.
The first inspection raising issues with the roof was in November 2020. The owners asked the property manager to arrange a quote for repair, and this was sent to the owner on 4 December 2020. The owners say they promptly made temporary repairs but decided it was best to fully replace the roof, which was done in 2021.
In relation to mould the owners say that it was only discovered at the end of the tenancy and that they had no prior knowledge., They say the tenants never reported any issues with mould and none of the inspections had noted any problem.
In relation to the cracked window in the bedroom the owners say that they only became aware of it in March 2023, and it had not been reported to them when it should have been. They believe the delay was due to COVID lockdowns when inspections were not being carried out. Witness: Cameron Winefield (property manager for Hibiscus)
The inspection in November 2020 was his first time at the property. Colleen, Ken and their son were there. There was a brief discussion with the son regarding the ceiling in the lounge. He does recall a discussion, but not sure how long. He also spoke to the tenants about some cleaning that was required and followed up with an email.
The witness says he emailed the property owners regarding the ceiling. They asked us to quote for repairs which was done (Tab 13 in the bundle).
The witness says he discussed the quote with the owners, but at that point the owner elected to make some temporary repairs to the roof himself and the roof was fully replaced in August 2021. These delays were all reasonable in the circumstances, due to supply issues, COVID lockdowns and the like.
During the November 2020 inspection the witness did see damage to the ceiling. He also observed that trees needed trimming as they were too close to the house.
Witness said he made the owners aware of the ceiling issue. Generally, the owners were doing their own repairs and maintenance and Hibiscus was only getting involved if asked to do so. The witness believed the owners were going to take care of it.
The witness says he did have a conversation with owners regarding the crack in the bedroom window. Again, this was reported to the owners, but the witness says he was not asked to arrange any repairs.
The witness says that he did not notice any mould during his inspections (from November 2020 onwards) apart from the ceiling. The only mould visible was on the final inspection after the furniture had been moved away from the walls.
The witness said that any issues noted would have been put in the inspection reports.
In relation to the alleged damage, he said that all doors were intact in March 2022 but that at the end of the tenancy all three internal doors had holes (July 2022). He said that the hot water cylinder replacement had occurred prior to him managing the property and does not believe this was the cause of damage.
Under cross examination the witness said that he accepted that neither the tenant nor her representative were present for the final inspection but that this was common practice.
He accepted that his email regarding the door damage only referred to two doors and said that he noticed the third door only afterwards which is why the quote was for three doors.
He accepted that there were no clear photographs showing a before and after of all three doors said to have been damaged. There was only one photograph of one door after the alleged damage. He said that it is common practice now to take fewer photographs during inspections due to privacy issues.
He accepted that he was aware that Cherry (his senior) had a phone call with the tenant’s son regarding the damage, but he was not a party to that conversation. Discussion and Findings
The inspection reports provided in the bundle of documents included inspection photographs. However, it transpired that some of the photographs attached to the reports were not photographs of the tenancy property and that photographs from another property had inadvertently been included.
During the hearing, each report was gone through to correctly identify which photos were of the tenancy property. In this decision, I have only relied on photographs which the parties agreed were of the tenancy property.
In addition, I have sighted photographs provided by the tenant and considered the evidence given at the hearing and by way of written statements. Heating
As noted above, the HHS are not applicable in full to this premises because the tenancy commenced in 2017.
Nevertheless, it is a requirement for a landlord to comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises. See section 45(1)(c) of the Act.
Regulation 6 of the Housing Improvement Regulations 1947 provide that “every living room shall be fitted with a fireplace and chimney or other approved form of heating”.
It has therefore been a legal requirement for more than 75 years for all homes to have at least one working heater in a living room area.
In this case, there was no dispute that there was a panel heater in the kitchen area.
The tenant’s view was that this heater was not in the right area and did not produce sufficient heat in any event.
The landlord’s view seemed to be that although the heater was located in the kitchen, it was “in reality” open plan to the living area and so would fulfil the requirements. See Tab 28 in the bundle.
I have reviewed the photographs of the property provided by all parties. I am satisfied that due to the open plan nature of the room, there was a heater in the living room as required under the Housing Improvement Regulations.
It is unlikely that this would be an approved form of heating under the HHS but as noted above that is not applicable to this property.
This claim is therefore dismissed. Insulation
From 1 July 2019, all residential premises had to be insulated to a minimum standard (see s45(1)(bb) of the Act and Part 2 Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016). Where the premises were insulated before 1 July 2016, the ceiling insulation had to have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation had to have an R-value of at least 0.9. The insulation had to 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. The insulation must be in reasonable condition.
In this case, the tenant claims there is no or insufficient insulation in the premises.
The landlord has provided a certificate of insulation from Rodney Insulation Ltd dated 9 May 2018. It is unclear when the insulation was installed but whether before or after 1 July 2016 according to the certificate the ceiling insulation at the property has an R-value of 3.1 and the underfloor insulation has an R-value of
5.
On the face of it, the property is therefore compliant with the Regulations. There is no evidence that can provide a basis for me to go behind the certificate which is on its face evidence of compliance.
The claim is therefore dismissed. Draughts
The tenant says that the premises is not compliant with the draught stopping standards.
I accept that there were significant gaps in the joinery and around some doors, however as noted above the HHS were not applicable to this tenancy.
As such, this claim must be dismissed. Mould/Damp
The tenant claims that the house was damp and mouldy, which is potentially linked, at least in part, to the leaking roof which has been referred to. The Housing Improvement Regulations 1947 specify that every house shall be free from dampness (Regulation 15).
The photographs referred to at para 59 above show mould on the walls, mould on the ceiling (particularly around the large hole in the lounge ceiling), gaps in the windows and paint peeling away around the windowsills.
Both Hibiscus and the owners deny there was any mould issue known about until after the tenant vacated the premises and that any mould that existed was caused by the tenant’s failure to ventilate.
Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem.
If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
In this case, although there is a heater, it is a single panel heater in the kitchen.
I accept Ms Rowan’s evidence, which was uncontested, that when she used the dryer, the back door was always open, that the toilet window was permanently open and that she opened a window whenever she cooked.
I also accept her evidence (which is corroborated to a degree by the appearance in the photographs) that most of the windows in the house did not open properly.
Therefore, the ability to ventilate the premises was limited by its state of repair and it can hardly be said to be the tenant’s fault if windows are not opened when it is difficult to do so.
I further accept the tenant’s (again, undisputed) evidence that she advised the property manager of her concerns about mould sometime back in 2018 or 2019. Despite the paucity of the inspection photos, there does appear to be some visible mould in the lounge in December 2019 (Tab 23, photo “018-lounge”).
I also note that the owners were repeatedly told (in the inspection reports) to clear gutters and cut back shrubs and trees that were encroaching onto the house. The fact that these requests were repeated so often implies that action was not taken.
There was also quite clearly a leaky roof (see below) which would have added to the overall moisture present. All of this adds to the likelihood that there was damp in the premises.
Having considered all the evidence provided, I consider it is established that the premises is inherently prone to mould.
I find this claim proven and will deal with the issue of damages below. Maintenance – Hole in Lounge Ceiling
Although the tenant referred to various repair issues, the one I shall focus on here is the large hole in the lounge ceiling.
There is no dispute that this hole was visible from at least November 2020. The photos attached to the property inspection report from that month show a large mouldy damp patch with paint “bubbling” and peeling off. Tab 25, photo “012 – Lounge”.
That did not develop overnight, and I find that the hole and damp in the ceiling must have been present for some months before being noted in the November 2020 report.
I accept the landlord’s evidence that the roof itself (and the leak) was repaired/replaced within a reasonable timeframe after November 2020. The roof was replaced in August 2021. I find this was reasonable because I accept that there were supply issues and delays related to the COVID lockdowns that impacted on the ability for the owners to arrange the roof replacement.
However, I do not consider that the failure to repair the lounge ceiling was reasonable.
The issue with the ceiling was mentioned in the inspection reports dated November 2020, March 2021, June 2021 and March 2022. There is no evidence of any attempts by the owners to repair this. Not only was it unsightly but the presence of mould spores and moisture in the ceiling cavity is of concern.
Given that the landlord claimed to have temporarily effected a repair on the roof December 2020 (that would have apparently stopped further leaking), there is no justification for a reasonable landlord to delay repair of the lounge ceiling.
I therefore find that the failure to repair the ceiling is a breach of the landlord’s obligation to maintain the premises in a reasonable state of repair. I will deal with the issue of damages below. Bond
A bond is prima facie a tenant’s money. The bond system is meant to ensure that a landlord cannot act as their own judge and jury regarding potential claims on the bond.
In this case, the landlord sought to make deductions from the bond in relation to alleged damage.
The tenant disputed those deductions. The property manager (and the owner) was well aware of this dispute. In this case, the tenant’s son acknowledged that he had punched a hole in one of the doors following the death of his father. To that extent, he accepted responsibility, and an appropriate deduction might have been made.
The precise amount is unclear because there is no real evidence of the true cost of repair or replacement (bearing in mind the age of the doors and depreciation that would be taken into account). However, for argument’s sake there may have been grounds to deduct $200 from the bond for the agreed damage.
No other deductions should have been made given the dispute.
The appropriate course of action where a landlord has a claim on the bond, and it is disputed, is for the landlord to make an application to the Tribunal. In this case, that was not done and instead the landlord made an application under the one-party procedure.
According to the owners, $1253.50 was paid out. It appears that $66.50 remains at the Bond Centre and is still held under the name of Kenneth Rowan.
Given that an appropriate deduction for one door (the damage agreed by the tenant’s son) was $200.00, I therefore order the landlord to refund the amount of $1053.50 to the tenant.
I have also directed the Bond Centre to release the remaining $66.50 to Mrs Rowan. She should provide them with her bank details. Damages
Compensatory damages are as they sound; they aim to compensate any losses incurred by a party.
In this case the primary loss I must focus on in deciding the amount to compensate the tenant is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenant was essentially paying for something they have not received.
In this case, there has clearly been a loss of amenity. The tenants paid rent and in return expected a clean, dry, warm home that was properly maintained. For the reasons and to the extent outlined in the paragraphs above, they did not receive that.
Overall, I consider a global figure to recompense the tenant for this loss of amenity is $2550.00. That equates to $30 per week for 85 weeks of the tenancy (between November 2020 and July 2022). Final Comments and Filing Fee
There was no application before me relating to any claim by the landlord on the bond. Had there been so, there was insufficient evidence to establish that the tenant is liable for damage beyond what was accepted as having been caused by her son.
I note that in this case, there was no independent evidence regarding the state of the doors at the start of or during the tenancy. There were very few photographs of the allegedly damaged areas at all and what was present was small and of poor quality.
Overall, the inspections, while regular, also seemed quite cursory. There were limited photographs taken and the comments made were also limited. Mr Winefield accepted that his inspections were visual only and there was not too much detail such as looking carefully at windows or walls.
He said that he would not routinely pull back furniture to try and see the state of walls. I accept that it may not have been appropriate for him to move furniture during his inspections, however things which were much more clearly visible, such as window frames and skirtings, do not appear to have been documented either.
Given the age and condition of the house (which was not HHS compliant because it did not need to be), it seems to me that it is incumbent on a property manager to proactively check for issues such as mould. This is particularly so when there is a documented leak in the premises.
I accept Mr Winefield’s evidence that their head office has been given guidance regarding properly respecting the privacy of tenants and for that reason the number of photos taken during an inspection have been reducing over time.
However, there are two clear problems with that approach. One is that a tenant may give consent for photographs of their personal possessions to be taken for inspection purposes. The other is that even in areas that would not involve an encroachment on personal privacy, such as doors, windows, ceilings, carpets etc (the areas which are most commonly the cause of dispute) have not been properly recorded either.
I encourage Hibiscus to reconsider the number and the nature of the photographs that they take. They are to be commended for ensuring that privacy is respected however there is a way to accurately document the condition of a property without infringing personal privacy.
I would like to extend my condolences to the tenant and her family for the loss of her husband.
It is clear that the fact that he passed away while living at the property has added to the tenant’s sense of grievance around the issues that she faced in the tenancy. I am however limited to only being able to compensate her for breaches under the Act and no more.
Finally, as the tenant has been substantially successful in the proceedings, I will reimburse the filing fee. J R Smith 5 November 2023

Tenancy Tribunal case 4515289 — Tenancy dispute at 4 Bonita Avenue, Stanmore Bay, Whangaparaoa 0932

At a glance

Tenancy Tribunal case 4515289 — Tenancy dispute at 4 Bonita Avenue, Stanmore Bay, Whangaparaoa 0932

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions