Published tribunal order
Tenancy Tribunal case 4525198 — Leaks at 33 Shoebridge Crescent, Ngunguru, RD 3, Whangarei 0173
Decided 23 Aug 2023 · Published 23 Aug 2023 · Application 4525198
- Leaks
- 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.
- Julie Milham and Scott Rinkin shall install compliant underfloor insulation in the master bedroom by 11 August 2023. The work shall be carried out to an industry acceptable standard. If the work is not completed by 11 August 2023, the rent will abate by $140.00 per week until the work is completed 3.
Reasons
Background
- The tenancy began in February 2017. It is a current tenancy.
- The landlords have owned the property for a long time. It used to be their family home. They now live in Auckland, but they visit the area frequently.
- The landlords’ applications seek rent arrears and termination.
- The tenant’s application raises issues relating to maintenance, reimbursement of outgoings, insulation, failure to lodge bond, and breach of peace, comfort and privacy.
- The hearing took place in [Event location suppressed] on 16 June 2023. Both parties attended the hearing. Tenant application Maintenance - introduction
- The landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises 1 . Window latches
- The property has brass window latches. [The tenant/s] submitted that there are approximately 7-8 missing latches. These latches have been missing since the beginning of the tenancy.
- [The tenant/s] did not raise this issue until earlier this year. Mr Rinkin has replaced most, but not all, of the missing latches. When replacing one of the latches he accidentally cracked a window pane.
- Mr Rinkin and Ms Milham submitted that there were no missing latches when the tenancy began. Ms Milham submitted that she did a ‘walk through’ at the beginning of the tenancy and noted any issues on the property inspection report attached to the tenancy agreement.
- The landlords did not breach their maintenance duty in respect of this issue. There is no evidence to establish that the landlords were aware of any missing latches before the beginning of this year.
- Given that there was scope for argument about whether the missing latches are a maintenance issue, or a consequence of carelessness by the tenant, it would be unfair to criticise the landlords for being somewhat slow in replacing the latches. 1 Section 45(1)(b) Residential Tenancies Act 1986 (“RTA”)
- However, I encourage the landlords to promptly attend to the pane that was accidentally broken. Ranchslider handle
- The handle on the ranchslider in the master bedroom came off in April 2021.
- [The tenant/s] submitted that she informed the landlords about this, but they did nothing until late 2022, when they “repaired” the ranchslider by adding a sliding patio bolt and a basic handle.
- Mr Rinkin and Ms Milham submitted that: a. [The tenant/s] initially advised them that she would ask her stepfather to try to repair the handle (he is a builder). b. They heard nothing more. c. When [The tenant/s] eventually told them that her stepfather could not repair the handle, she had already disposed of the handle which made it more difficult to find a replacement.
- [The tenant/s] submitted that she let the landlords know that her stepfather could not repair the handle within about a month of it coming off.
- The landlords’ explanation of the reasons for the delay are not particularly persuasive. [The tenant/s]’s evidence includes screenshots of numerous messages between herself and Ms Milham, some of which include ‘follow ups’ about the ranchslider handle. Ms Milham’s replies do not indicate that she was waiting to hear from [The tenant/s] about whether her stepfather had repaired the handle – in a message in February 2022 Ms Milham stated “so sorry but we totally forgot about the sliding door handle”.
- The issue is more than minimal – as well as being inconvenient for [The tenant/s] to open and close the door without a handle, the door could not be properly secured for a prolonged period.
- My finding is that the landlords failed to meet their duty to maintain the premises in a reasonable state of repair in respect of this issue. Rotten decks
- There are two decks on the property, one on the bottom level and one that comes off the master bedroom on the upper level.
- The deck on the upper level has a ‘cut out’ where the landlords previously had a small pool.
- [The tenant/s] submitted that: a. Parts of both decks are rotten and dangerous. b. Several years ago, the landlords wanted to put the property on the market and they purchased timber to replace the decks. When they changed their minds about selling the property, the pile of timber ‘disappeared’, c. In February 2021, one of the boards popped up when she was walking on it, injuring her leg. She informed the landlords about this. The landlords were slow to respond, and by the time that Mr Rinkin arrived “several weeks” later, she had already re-secured the plank. d. Parts of the deck are supported by what appear to be makeshift metal poles, and she is concerned about the structural integrity of the decks.
- Mr Rinkin and Ms Milham submitted that: a. The decks are generally sound. b. [The tenant/s] did not raise concerns about the deck apart from the incident in February 2021. c. They responded promptly to that incident, but [The tenant/s] had already done the repairs herself. The plank that “popped” was not rotten, and it did not break. d. After receiving [The tenant/s]’s application they have engaged a builder to inspect the deck and replace any planks that are showing signs of deterioration.
- The evidence provided to me does not establish that the decks are rotten, or dangerous, or structurally unsound.
- The condition of the decks per the photographs is consistent with the age and character of the property.
- The incident in February 2021 was unfortunate. However, it does not seem that there was any prior indication that the plank could ‘let go’. As noted above, the plank was sound and not rotten. The repair was straightforward. It is disputed, and not proven, that the landlords failed to attend promptly to this repair.
- There is no evidence, such as a builder’s report, to indicate that there are any substantial problems with the deck. Trees
- [The tenant/s] submitted that: a. There are numerous large trees around the property, some of which are close to the house. b. There are also tall hedges.
- Mr Rinkin and Ms Milham acknowledged that there are many large trees at the property, and when they were living there they had to regularly maintain them to keep them under control.
- They also argued, somewhat in contradiction to this, that they were not aware that the trees and hedges had become overgrown because [The tenant/s] failed to tell them.
- Waiting until the tenant complains about the state of the trees and hedges before doing a gardening ‘blitz’ is not a satisfactory approach for a property such as this. The landlords need to have regular, planned maintenance of the trees and hedges to prevent them from becoming problematic for the tenant. Hole in wall - bathroom
- [The tenant/s] submitted that she discovered a small hole in the bathroom wall that had been covered over with a sticker.
- Ms Milham was absolutely adamant that there was no hole in the bathroom wall when this tenancy began, but she also acknowledged that there was no way for her to know whether there was a hole in the wall if it was covered by a sticker.
- It is likely that the damage was present when [The tenant/s]’s tenancy began, and that the damage was caused at some point during the previous 20-plus years that this property has been tenanted.
- However, the damage is minor and inconsequential, and the landlords were genuinely unaware of it. It is reasonable for the landlords to consider this a non- urgent maintenance issue. It has not a caused a loss of amenity that warrants consideration of any compensation. Bedroom floor
- [The tenant/s] submitted that sometime in 2018, when the property was on the market for sale, she overheard a comment that the bathroom floor and bedroom floor would “need to be sorted out”.
- She contacted the landlords about this.
- Mr Rinkin came to the property soon after, and carried out repairs on the bathroom floor.
- The bedroom floor was never repaired.
- Mr Rinkin and Ms Milham submitted that they were not aware of any problem with the bedroom floor until recently. They submitted that [The tenant/s] did not raise any concerns about the bedroom floor in 2018, only the bathroom floor.
- After [The tenant/s] raised concerns about the bedroom floor earlier this year, they arranged for a builder to investigate the floor. He found some deformation of the floor, not to the point that the floor is in danger of collapse, but necessitating some remedial work.
- It is disputed and not proven that the landlords were made aware of a problem with the bedroom floor in 2018.
- The landlords have now taken reasonable steps to investigate the floor, and some remedial work is necessary. The onus is now on the landlords to ensure that this work is done promptly. Maintenance - summary
- My findings above are that the landlords failed to meet their maintenance obligations in respect of repairs to the ranchslider handle, and trimming of trees / hedges.
- It is an unlawful act for a landlord to intentionally fail to maintain the premises in a reasonable state of repair. Exemplary damages of up to $7,200 can apply.
- My finding is that it is not appropriate to award exemplary damages in this instance. The landlords’ failure to maintain in respect of these two issues is the result of oversight / excessive casualness rather than an intentional act.
- I will make an award of compensation to reflect the fact that the failure to maintain caused [The tenant/s] some loss of amenity.
- The issues are not significant, but they were not addressed for a long time.
- I will award compensation of $300.00. Removal of owner’s belongings from shed, and removal of boat and fishing gear
- The landlords left some household items in the garage / car port.
- At the beginning of the tenancy there was no clear understanding about whether those items were to remain.
- They did in fact remain until earlier this year, when [The tenant/s] asked about their removal. The landlords then removed most, but not all of those items.
- Tenants are entitled to vacant possession of the premises and are not required to store the landlord’s property unless there is a specific agreement about this.
- However, I accept that the landlords were not aware that [The tenant/s] had any concerns about the items in the garage until earlier this year. After [The tenant/s] raised concerns, the landlords removed some of their property. The remaining items are mostly for use in the tenanted property (such as spare paint). Mr Rinkin and Ms Milham submitted they are willing to remove everything if [The tenant/s] wishes.
- In January 2020, Ms Milham asked [The tenant/s] if she would allow them to store their boat and fishing gear on part of the property for a few weeks. [The tenant/s] agreed.
- The boat and gear were never removed.
- Ms Milham explained that their original plans were compromised by the COVID- 19 lockdowns that began in March 2020, and then things “drifted”. They were not aware that [The tenant/s] was concerned about the boat remaining there. They also noted that they have made some compromises as well, such as allowing [The tenant/s] to have a dog at the property.
- At the hearing [The tenant/s] submitted that has no objection to the boat remaining, provided that the fishing gear is tidied up. The landlords agreed to this.
- In summary: a. It was reasonable for the landlords to assume that [The tenant/s] was not concerned about these issues until she raised them earlier this year. b. [The tenant/s] was entitled to require the landlords to remove their belongings. c. The compromise arrangement of leaving a few items in the garage / carport, and tidying up the fishing gear / boat, is sensible and practical. d. It is not appropriate for the Tribunal to make any orders under this heading. Power and internet
- In or around December 2020 the landlords brought their campervan onto the neighbouring section.
- They set up a power supply with a sub-meter. They made an agreement with [The tenant/s] to use her wi-fi. They purchased and provided boosters to improve the wi-fi signal strength.
- Mr Rinkin and Ms Milham made some payments towards power, but the payments were not based on a detailed calculation of actual power use.
- Mr Rinkin and Ms Milham made one payment of $65.00 in December 2020 towards wi-fi.
- Earlier this year [The tenant/s] raised the issue of reimbursement for power and wi-fi costs.
- After some negotiation, they reached agreement about a much clearer process for calculating and paying power costs.
- They did not quite reach agreement about compensation for historical power use – the contentious issues were how to apportion the static / fixed charges, and assessment of power used by the water pump and wi-fi signal boosters.
- [The tenant/s] seeks reimbursement of $370.72, which is comprised of $130.00 for power used by the pump and boosters, and the balance reflecting their different positions about apportionment of fixed charges. Ms Milham and Mr Rinkin argued that they should pay ¼ of the fixed charges because they are not at the property very often. [The tenant/s] argued that they should pay half.
- My finding is that: a. The actual power used by the water pump and boosters is practically impossible to assess. The amount of $170.00 seems reasonable for more than two years’ worth of power. b. The RTA states that tenants are liable to pay for outgoings that they consume. Landlords are liable for outgoings that would be incurred whether or not there is a tenant in the premises. Those principles do not directly address the slightly unusual situation here, but in my view they support a finding that the fixed costs should be shared evenly between the landlord and tenant.
- The claim for $370.72 for power costs is proven.
- In terms of wi-fi, my findings are that: a. It is not proven that the landlords agreed to pay half of the wi-fi costs. b. To the extent that the landlords have ‘consumed’ some of [The tenant/s]’s wi-fi, it has not caused her any costs of losses. [The tenant/s] is on an unlimited plan. c. There is no basis for any award of compensation in respect of wi-fi. Insulation
- [The tenant/s] submitted that there is missing / inadequate insulation under the floor of one of the bedrooms, and there is no insulation under the floor of the master bedroom.
- The master bedroom is on the upper floor, directly over the garage. The garage ceiling has exposed beams.
- Mr Rinkin and Ms Milham submitted that it did not occur to them that this was a sub-floor area that needed to be insulated. They submitted that it could potentially have insulation fitted, and they were willing to do this.
- In terms of the other bedroom, which is on the bottom floor, Mr Rinkin submitted that there is very limited crawl space underneath the floor in that part of the house. He did his best to insert as much polystyrene insulation as he could in that area.
- Landlords have had an obligation to have compliant ceiling and underfloor insulation since 1 July 2019.
- There are exemptions to this obligation, including if: a. The floor is directly above another habitable space in the house. b. It is not reasonably practical, or it is unsafe, to access the area to install insulation.
- In this instance: a. The first exception quoted above does not apply to the master bedroom, because the space directly below is not a habitable space 2 . b. The second exception applies to underfloor insulation for the other bedroom. Having regard to [The tenant/s]’s photographs, I accept that it is not reasonably practicable to install insulation under that bedroom.
- I accept that the landlords genuinely understood that they were not obliged to install insulation under the floor of the master bedroom. It is not appropriate to make an award of exemplary damages in this instance.
- However, now that the landlords are aware that they do need to fit insulation there, it is important that they get on and do this work promptly.
- At the hearing, the landlords undertook to complete this work within 8 weeks. Bond
- [The tenant/s] paid a bond of $750.00 at the start of the tenancy.
- The landlords failed to pay the bond to the Bond Centre within 23-working days.
- This is an unlawful act. Exemplary damages of up to $1,500.00 can apply 3 .
- In considering an award of exemplary damages the Tribunal must have regard to the following factors: 4 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest. 2 See the definition of “habitable space” in section 2, Residential Tenancies (Healthy Homes Standards) Regulations 2019 3 Sections 19(1)(b) and 19(2) RTA 4 Section 109 RTA
- In this instance, I accept that the landlords’ failure to lodge the bond was a genuine oversight.
- The fact that the bond was not lodged caused [The tenant/s] genuine concern. There is a legitimate public interest in ensuring that landlords meet their duty in respect of the bond.
- Having regard to these factors I will award exemplary damages of $300.00. Breach of quiet enjoyment
- Landlords must not cause or permit an interference with the tenant’s reasonable peace, comfort, and privacy 5 .
- [The tenant/s] raised two issues under this heading: a. The landlords freely ‘coming and going’ to retrieve items from the garage. b. Two occasions when Mr Rinkin carried out work on the ranchslider handle.
- The evidence about the first issue was limited and conflicting. I accept that until earlier this year, the landlords genuinely understood that [The tenant/s] did not object to their having some items in the garage. There was a casual and informal relationship between the landlords and tenant.
- There is not sufficient evidence to show that the frequency of the landlords accessing the garage, or the circumstances of any particular visit, amounted to an unreasonable interference with [The tenant/s]’s peace, comfort, and privacy.
- In terms of the second issue, [The tenant/s] submitted that: a. She often works at night and sleeps during the day. b. One Sunday she was sleeping in the afternoon when Mr Rinkin announced himself outside the ranchslider door of her bedroom. He was there to repair the ranchslider handle door. c. She was upset, but she let him do the work, and she went downstairs. Mr Rinkin was not able to compete the job. d. The following Sunday afternoon, the same thing happened again.
- Mr Rinkin submitted that: a. He knocked on the front door and called out, but [The tenant/s] did not respond. b. The work needed to be done. c. At the time, [The tenant/s] did not seem upset, and they talked in a friendly way. 5 Section 38(2) RTA d. It was normal for him to come over and do maintenance work on a Sunday afternoon before returning to [City].
- It is acceptable for a landlord to knock on the door and ask the tenant if they may do maintenance work. A landlord does not have to give notice to do this.
- However, in this instance Mr Rinkin has gone to the upstairs rear part of the house and has either knocked on the bedroom ranchslider door, or he has called out from the deck outside the bedroom.
- That action was inappropriate, and it was an interference with [The tenant/s]’s reasonable peace, comfort, and privacy.
- A breach of section 38(2) RTA in circumstances that amount to harassment of the tenant is an unlawful act, and exemplary damages of up to $3,000.00 can apply.
- In this instance, Mr Rinkin did not intend to harass [The tenant/s]. He was at the property to fix the ranchslider handle. It is not appropriate to award exemplary damages.
- However, I will make an award of compensation on the grounds that Mr Rinkin breached section 38(2) RTA, and his actions caused [The tenant/s] discomfort and anxiety.
- I will award compensation of $200.00. Noted
- It is noted that the landlords intend to replace any remaining broken power / light switches as soon as possible. Landlords’ application
- The landlords’ application seeks termination and rent arrears. Rent arrears
- In April 2023 the weekly rent increased from $395 to $550.
- The landlord’s rent record shows rent arrears of $1490.00 at the date of hearing, comprised of: a. Rent not paid for the week ending 31 March 2023 ($395.00); b. Rent not paid for the week ending 2 June 2023 ($550.00); c. Rent paid at $420.00 per week for three weeks after the rent increase.
- [The tenant/s] submitted that: a. She withheld rent for the week ending 31 March because of amounts that she considered she was owed for power and wi-fi. b. She withheld rent for the week ending 2 June because of costs / inconvenience caused by a leaking container of herbicide in the garage (discussed in more detail below). c. She did not pay the full amount of the rent increase because of outstanding maintenance issues.
- The herbicide leak incident relates to a drum of what transpired to be gorse killer. The drum was in the garage, which is directly below [The tenant/s]’s bedroom.
- The drum was not labelled, and [The tenant/s] did not know what the leaking substance was. It had a strong chemical smell. [The tenant/s] contacted the landlords, who stated that it is not their drum, and they were not able to assist.
- [The tenant/s] ultimately contacted a hazard chemicals disposal company. [The tenant/s] paid that company to dispose of the herbicide. [The tenant/s] submitted that she moved out of the property for several days because of the smell.
- The drum did not belong to [The tenant/s]. I accept that it also did not belong to the landlords, and the landlords knew nothing about. However, it was clearly on the property, and, given that it was not [The tenant/s]’s, it must have been there since the beginning of her tenancy.
- [The tenant/s] has incurred cost and inconvenience because of a problem with something that was on the premises when her tenancy began. My finding is that the landlord, not the tenant, is responsible in the first instance for the cost of tidying up and disposing of the leaking drum. The landlord could then seek to recover those costs from the owner of the drum, if they were able to identify who that person is.
- The amount of one week’s rent is reasonable and conservative assessment of the compensation due to [The tenant/s] to reimburse her for her out of pocket costs and inconvenience. Termination
- The landlord seeks termination for rent arrears under sections 55(1)(a), 55(1)(aa), and 56 of the Residential Tenancies Act 1986.
- The landlord has proven rent arrears that, in the absence of any amounts owed to the tenant, would provide grounds for termination under those sections.
- However, the amounts owed to the tenant can be set-off against the rent arrears 6 .
- In this instance, the proven amount of compensation and exemplary damages owed to [The tenant/s] entirely sets off the rent arrears owed as at the date of hearing.
- Therefore, there are no grounds for termination of the tenancy for rent arrears. Name suppression, filing fee
- Both parties have been partially successful in their applications, and each must bear their own cost of the filing fee.
- The tenant sought name suppression. Most parts of [The tenant/s]’s application have been successful to some extent. [The tenant/s]’s rent deductions were correctly calculated. I am satisfied that [The tenant/s] has been substantially successful in the proceedings.
- Name suppression is granted per section 95A(1) RTA.