Published tribunal order
Tenancy Tribunal case 4524489 — State of repair at Unit/Flat 2, 143 May Road, Mount Roskill, Auckland 1041
Decided 6 Oct 2023 · Published 6 Oct 2023 · Application 4524489
- State of repair
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- The termination notice dated 3 May 2023 is declared to be retaliatory and is set aside. For clarity, the tenancy agreement remains in place.
- Reliance Property Management Limited must pay [The tenant/s] $4,270.44 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. The tenant represented herself and Karishma Verma attended as property manager. Her company acts as the agent for the owner.
- The hearing was originally set down on 21 April 2023. At that time, the hearing was adjourned to allow the landlord an opportunity to prepare a response to the tenant’s various claims which had not all been notified to the landlord.
- Following the release of my order dated 26 April 2023, the owner of the premises instructed the property manager to issue a notice of termination to the tenant.
- The tenant claims that the notice was retaliatory.
- In addition to consideration of whether the notice was retaliatory, the tenant’s other claims relate to a failure of the landlord to either meet Healthy Homes Standards or to otherwise maintain and repair the premises.
- Those claims relate to: •No heating •Garage door in disrepair •Moisture damage/hole in garage roof •Fence/gate repair •No clothesline •Leak in kitchen bench •Broken kitchen cupboards •Leak from shower •Lining of drawers cracked •Curtains in disrepair •Mould and mildew in various locations •Insect infestation •Rangehood not properly fixed to wall
- I begin by noting that 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.
- 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.
- In this case, the tenant supplied photographs, email and text message communications to support her claims. Retaliatory Notice
- The tenant says that she believes the notice given to her on 3 May 2023 was retaliatory. She said that it seemed like the landlord was only giving her notice because of the Tribunal proceedings. Consequently, she applied to the Tribunal within the relevant period (28 working days) for an order declaring the notice to be retaliatory.
- Due to delays in scheduling hearings, this matter has only been heard today, the day on which the tenancy was (if the notice is valid) due to end. The parties advised the Tribunal that the tenant had already asked for and been given an extension due to difficulties in finding alternative accommodation. However, today the tenant confirmed that she wishes to avoid moving altogether if that is possible.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986 (“the Act”).
- Under Section 60AA a landlord must not give a notice to terminate the tenancy, knowing they are not entitled to do so.
- Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A of the Act.
- The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
- The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: “It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.”
- During the hearing the property manager said that after the hearing in April she conveyed to the owner all of the issues that had been raised in the hearing that require remediation.
- She said that after that discussion the owner then instructed her to give the tenant notice to vacate. The actual written notice was dated 3 May 2023.
- The notice was said to be based on section 51(2)(f) of the Act which relates to extensive renovations where it would not be reasonably practicable for the tenant to remain in occupation and where work is to begin within 90 days of the termination date.
- When I consider the available evidence, as well as the arguments presented by the parties, I conclude that it is more likely than not that the termination notice was a retaliatory notice.
- The proximity of the timing between the hearing on 21 April 2023 and the issuing of the termination notice on 3 May 2023 is unlikely to be a coincidence.
- Moreover, when queried on the nature of the renovations said to be planned, the property manager was unsure. She believed that the owner planned to use his own contractors to undertake various repairs and maintenance. She also believed there might be a plan to replace the bathroom. However, there was no clear evidence of quotes, a scope of works, or clear evidence that these works were of the kind that would genuinely require the tenant to vacate the premises nor that they would be undertaken within 90 days after the termination date.
- It is clear that the issuing of the notice was in response to the property manager telling the owner of the issues that had been raised by the tenant at the hearing in April.
- There is no doubt that repairs and maintenance are required at the property (see my findings below) however undertaking necessary repairs and maintenance would not require the property to be vacant.
- Even if the owner does have a genuine intention to undertake more extensive renovation work at the property, I am satisfied that the issuing of the termination notice was motivated at least in part by the tenant exercising her rights under the Act.
- I therefore find that the notice was retaliatory. It is accordingly set aside, and the tenancy agreement remains in place.
- Given the delay in holding this hearing and the uncertain outcome, the tenant has managed to find some alternative accommodation however she has not yet paid a bond for that premises. The potential move in date would be 11 August 2023. She has however indicated her wish to remain in the current premises to avoid disruption to her and her children.
- Given that the termination notice has now been set aside, the tenant does not have to move out. However, she needs to advise the property manager as soon as possible whether or not she will be vacating on 11 August 2023.
- I will deal with the issue of damages below. Other Claims
- The tenant’s other claims relate to a range of repair and maintenance issues. Essentially, she says that she has been raising multiple issues for the duration of the tenancy (which is now more than 2 years) and most things have not been fixed.
- Section 45(1)(b) of the Act requires a landlord to provide and maintain the premises in a reasonable state of repair.
- Section 45(1)(bb) of the Act requires a landlord to comply with the healthy homes standards (“HHS”).
- Section 45(1)(c) of the Act requires 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.
- Because this tenancy commenced prior to 1 July 2021, the HHS do not yet apply to this tenancy.
- However, certain minimum requirements for housing have been in law for many years - see Housing Improvement Regulations 1947. A failure to comply with these regulations will amount to a breach under section 45(1)(c).
- I turn now to deal with each of the individual claims. Heating
- The tenant says that the landlord has never provided a heater for the premises. She has been asking for one since she moved in. She says that due to this failure she has had to provide her own column oil heater which costs a lot of money to run.
- The property manager accepted that there was no heater provided. The property manager says that she has raised this issue with the owner who has said he will provide one, but this has not eventuated.
- As noted above, it is a legal requirement for landlords to comply with the Housing Improvement Regulations 1947. Regulation 6 requires that “every living room shall be fitted with a fireplace and chimney or other approved form of heating”.
- The premises does not meet this requirement.
- I find therefore that there has been a breach of section 45(1)(c) of the Act. I will deal with the issue of damages below. Garage Door
- The tenant says that the garage door (the pedestrian entrance not the roller door) has been rotting and degrading since the day she first moved in.
- She has provided photographic evidence of that door which clearly shows the state of the door when she first moved in as well as more recently. She says this is one of many issues that has been raised with the landlord, and to date it remains in that state.
- The property manager accepted that the garage door had been like that since the beginning of the tenancy and confirmed that the tenant has raised this issue with her.
- The property manager said that she has also raised the issue with the owner, however the owner appears to have taken the view that because this is not part of the main house, he is not required to fix it.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. “Premises” is defined in the Act as including “any part of any premises” and in my view includes the garage which is for the exclusive use of the tenant and forms part of the premises that is rented under the tenancy agreement.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Garage Roof/Ceiling – Moisture Damage
- The tenant said that this only became an issue following the severe weather events in Auckland in January and February this year. Following the flooding and cyclone, the tenant advised the property manager that there was a leak or water damage coming through the garage ceiling.
- Although this is a more recent issue, nevertheless the tenant was able to provide photographs showing the progression of the area from discoloured, to mouldy, to ultimately cracking through the ceiling.
- The property manager said that there had been an insurance claim made by the owner following the flooding however there had not been any progress made on repairs.
- Because this has been a more recent issue and I do understand that there are some significant delays in processing of insurance claims, I am prepared to accept that in relation to this issue, the owner is not in breach of the Act.
- However, that might change if work is not carried out to remedy this issue as soon as possible; the claim is dismissed but the tenant may well bring another claim if the repair work is not undertaken within a reasonable timeframe. Fence/Gate Repair
- The tenant said that the gate/fence has been broken since she moved into the premises and provided photographs to confirm. In particular, there are missing palings which cause a safety concern for her 2-year-old child. She also says the gate needs to be rehinged because it scrapes on the concrete driveway when it is being opened and closed.
- The tenant has raised this issue with the property manager.
- Although contractors did attend at some point, the tenant said that they only reinforced some of the fence after the storm events but have not actually repaired the problems that were there to begin with, namely the missing palings and hinges that cause the gate to scrape on the ground. The tenant said that the contractors told her they would come back to do those repairs, but then never returned.
- The property manager accepted that this issue had been raised and that it has been that way since the beginning of the tenancy.
- She said that she had raised it with the owner who had his contractors attend. But while they reinforced parts of the fence, they did not replace the missing palings or hinges. She said that she has asked for the contractors to return to finish the job however that has not happened.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the gate/fence this has not happened. Little appears to have been done to address the issue since the beginning of the tenancy.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Clothesline
- The tenant said that when she first moved in the clothesline was mouldy and the pole on which it was mounted was rotting away. She said that shortly after she moved in, during a particularly windy day the clothesline was bent by the force of the wind, and she had to remove the clothesline.
- She said that she advised the property manager about this, but the clothesline has never been repaired or replaced. Consequently, she had no place to dry her clothes and says she has had to make her own makeshift clothesline.
- Once again, the property manager said that she advised the owner of the problem and the need for a repair or replacement clothesline.
- The owner has to date done nothing to remedy this.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the clothesline this has not happened.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Kitchen Bench
- The tenant said that the kitchen bench has rotted in some parts. As a consequence, the owner has apparently glued a metal plate over part of the bench.
- I have sighted photographs of this area. The metal plate is not flush with the bench and the edges of it protrude out. The sharp metal corners are clearly a hazard especially with young children.
- The tenant said this was present when she first moved in. She said it was not a proper repair and every time that area of the bench gets damp water flows off the bench and onto the floor.
- The tenant has raised this issue with the property manager.
- The property manager accepted that this issue had been raised and that it has been that way since the beginning of the tenancy.
- She said that she had raised it with the owner who had his contractors attend and the advice apparently given by the owner’s contractors was that the bench was “fine” – in other words there was nothing wrong with the bench and so did not require repair.
- Nothing has therefore been repaired.
- I do not accept that covering over rotting parts of a kitchen bench with a metal plate is “fine”. The rotting is still there. The sharp metal protrudes and is a health and safety issue. This is clearly not a “reasonable state of repair”.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the kitchen bench this has not happened.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Kitchen Cupboards
- The tenant said that the kitchen cupboards were OK at first but over time the hinges have worn out. As a consequence, the cupboards are coming off the hinges.
- The tenant has raised this issue with the property manager.
- The property manager accepted that this issue had been raised. She said that she believed that the owner’s contractor might have tightened the hinges at some point. However, she accepted that there had been no fix per se.
- The tenant said that contractors had not tightened the hinges and that in any event the hinges require replacement.
- The property manager did not have personal knowledge about what the contractors had done and was relying on a belief she had from speaking with the owner.
- On balance, I accept the tenant’s evidence because she was actually present when contractors have attended (to check out the bench and say it was “fine”).
- The cupboards have not been repaired despite this being a simple fix.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the kitchen cupboards this has not happened.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Shower
- The tenant said that the shower leaks whenever it is used. She has provided a photo of the shower tray which appears to show a gap between the bottom of the shower surround and the floor.
- The tenant is not entirely sure of the source of the leak, but she says that when the shower is in use, water seeps from underneath the shower onto the adjacent floor. This is a hazard particularly for her children using the bathroom.
- This problem has been advised to the property manager. The tenant accepted that a contractor did attend and try and re-silicone around the shower however there has been no improvement.
- The property manager accepted that this issue had been raised.
- She said that the owner had tried to deal with the leak with new silicone however she accepted that this had not fixed the problem and it was still an issue.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the shower this has not happened. Although I accept that a contractor may have attended that has not resulted in the problem being fixed and further complaints by the tenant have not resulted in any further attempts.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Lining in Kitchen Drawers
- The tenant said that the inside of the kitchen drawers are cracked and degraded. Consequently, it is not possible to properly clean them.
- I have sighted photographs taken by the tenant when she first moved in that show the drawers are dirty and there are scratches all over the inside where the paint has completely worn through to the MDF underneath.
- The tenant has raised this issue with the property manager.
- The property manager accepted that this issue had been raised and that it has been that way since the beginning of the tenancy.
- She said that she had raised it with the owner but was not aware that anything had been done to remedy the problem.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the drawers this has not happened.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Curtains
- The tenant said that the curtains in the lounge and bedrooms were either mouldy and stained, not properly attached to the wall or missing hooks.
- I have sighted photographs that confirm the state of the curtains as described, in photos taken by the tenant when she first moved in or shortly thereafter.
- The tenant has raised this issue with the property manager.
- The property manager accepted that this issue had been raised and the property manager has raised it with the owner.
- No curtains have been replaced.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the curtains this has not happened.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Mould and mildew
- The tenant said that there was mould and mildew present when she first moved into the tenancy and has provided photographs to show examples.
- The tenant claims that the house is damp and cold generally which is linked with the mould issue.
- The Housing Improvement Regulations 1947 specify that every house shall be free from dampness (Regulation 15).
- 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.
- The landlord in this case has not provided a heater and there is no evidence that he has provided any dehumidifiers.
- 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.
- 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.
- Given that the tenant’s photographs show these areas of mould and mildew right at the start of the tenancy, I find that the mould that was present is more likely than not caused as a result of inherent issues with the premises.
- This has not been remedied by the landlord.
- As noted above, it is a legal requirement for landlords to comply with the Housing Improvement Regulations 1947. Regulation 15 requires that the premises are free from damp.
- The premises does not meet this requirement.
- I find therefore that there has been a breach of section 45(1)(c) of the Act. I will deal with the issue of damages below. Rangehood
- The tenant said that the rangehood is not properly fixed to the wall and is a hazard. She says it has been that way since the start of the tenancy.
- I have sighted photographs of the rangehood, and it indeed appears to be somewhat precariously attached. There is also visible rust and paint marks which suggests that some attempt at painting has occurred in the room without the rangehood being either removed or taped off. It is a slapdash job at best.
- There are gaps where the rangehood is coming away from the wall and ceiling, and the gaps are bigger where it is closer to the ceiling. The rangehood is therefore on an angle.
- The tenant has raised this issue with the property manager.
- The property manager accepted that this issue had been raised and that it has been that way since the beginning of the tenancy.
- She said that she had raised it with the owner who had his contractors attend and the advice apparently given by the owner’s contractors was that the rangehood was properly secured so nothing needs to happen.
- Consequently, no attempt has been made to remedy the issue.
- I do not accept that sending someone to simply look at the problem and say that it is fine is an adequate response here.
- I accept that it has not yet fallen down. That however might be a matter of luck. A reasonable landlord would ensure that a heavy item such as a rangehood is properly affixed to the wall and sort out the rust and paint that are visible.
- That has not happened here. This rangehood is not in a “reasonable state of repair”.
- As noted above, there is a positive obligation on landlords to provide and maintain premises in a reasonable state of repair. In relation to the rangehood this has not happened.
- I find therefore that there has been a breach of section 45(1)(b) of the Act. I will deal with the issue of damages below. Insects
- The tenant said that she discovered cockroaches on the day she moved in. She has provided photographs of what she found.
- She said that the problem has come back intermittently over the years although it did not appear to be a current issue.
- I am unsure whether this was notified to the property manager.
- Although I accept the tenant’s evidence as to what she found, it is difficult to say what causes insects in a premises because a variety of factors may be involved.
- Without more evidence, I simply cannot say whether this is a landlord responsibility or not.
- I find there is insufficient evidence to establish this breach and therefore this claim is dismissed. Damages
- Damages in civil claims fall into two broad categories.
- Compensatory damages are as they sound; they aim to compensate any losses incurred by a party.
- Exemplary damages are designed to punish and deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal stated: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
- 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 she has essentially been paying for something she has not received.
- In this case, there has been a loss of amenity for almost the entire duration of the tenancy. The tenant pays rent and in return is entitled to expect a clean, dry, warm home that is properly maintained. For the reasons and to the extent outlined in the paragraphs above, she did not receive that.
- Standing back and looking at things in the round, I consider a global figure to recompense the tenant for this loss of amenity is $3,250.00. That equates to approximately 5% of the overall rent paid by the tenant since the start of the tenancy.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act.
- In this case, I am satisfied that in issuing a retaliatory termination notice, the landlord has committed an unlawful act. See section 60AA of the Act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
- Intentional means that the party who has committed the breach must be aware of it. The focus of the intention however must be the act (or omission) and not the legal knowledge of the offending party. The District Court has confirmed that: Like all citizens... [the landlord is]... deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law. 1
- I have determined that this breach was intentional because the owner in this case clearly instructed the property manager to issue the termination notice only after the tenant had applied to the Tribunal and after being advised of the repairs and maintenance that would be required. That is a deliberate act.
- Applying the other criteria in s109(3) most notably the public interest, I consider it would be just to make an order.
- The maximum available for a breach under this section is $6500.00. In the absence of any obviously aggravating features, I consider that an award at the lower end of the scale is appropriate. I therefore award $1000.00 in exemplary damages. Final Remarks, Suppression, Filing Fee
- This is an unfortunate situation where the tenant has spent two years in a tenancy with only limited repairs and maintenance being undertaken. These matters were raised promptly and ought to have been repaired promptly and fully.
- It seems that this is a situation where despite having a property manager, the owner has opted to manage those issues himself and use and rely on his own contractors.
- When owners appoint property managers to manage their tenancies they do so because property management companies usually have expertise in this area. Owners can be expected to rely on property managers to ensure that the house meets the regulatory requirements. If an owner chooses to disregard that advice or fails to act when required, then it rather begs the question of why they have bothered to appoint a property manager.
- It must not be forgotten that property management companies also have a choice as to whether to accept a property onto their books. There is no requirement for them to do so; if a property is not up to standard then there is a simple remedy for property managers and that is not to accept the contract with the owner to manage it. 1 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
- In this case, the tenant has substantially succeeded in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of her name and identifying details.
- Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. J R Smith 02 August 2023