Published tribunal order
Tenancy Tribunal case 4531318 — Tenancy dispute at Unit/Flat 4, 26 Mary Street, Mount Eden, Auckland 1024
Decided 4 Sept 2023 · Published 4 Sept 2023 · Application 4531318
- Boarding House
- Cleanliness
- Exemplary damages
- Harassment
- Healthy homes
- Mould & damp
- Smoke alarms
- State of repair
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.
Reasons
- Both parties attended the hearing. This is a tenant application.
- The tenant is claiming the following: -That the landlord is unreasonably retaining her bond -Interfering with her quiet enjoyment -That property is not Healthy Homes Compliant -No heating provided and no Healthy Homes certificate provided -Landlord made returning the key to them at end of tenancy difficult -Tenant’s privacy has been breached by photographing the property for sale with her possessions visible online Unreasonably with holding bond
- The tenant states that the landlord is unreasonably withholding her bond. The landlord has been making claims that there was damage to the exterior deck at the property. Regardless of whether this is correct or not, the landlord has not filed a counter claim in the Tribunal to be heard with the tenants claim. Therefore, the Residential Tenancies Act 1986 (RTA), states that I must refund the tenant’s bond. I am ordering that the bond centre refund the tenants bond in full to her immediately. Breach of Healthy Homes Standard s 45 RTA
- [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986(RTA).
- Under section 45, a landlord must -provide the premises in a reasonable state of cleanliness -provide and maintain the premises in a reasonable state of repair -comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 -comply with any relevant enactment in relation to buildings, health and safety -provide an adequate means for the collection and storage of water if there is no reticulated supply
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant claims that the property did not have heating as required under the RTA and that the bathroom fans were mouldy and dirty. The tenant wanted a Healthy Homes Standard Certificate to be provided to her.
- There is no dispute that at the start of the tenancy the landlord provided the tenant with a heater and a fan.
- The tenant advised the landlord months after the start of the tenancy that he needed to install a fixed heater to the wall. The landlord attempted to have the heater installed and make arrangements for a person do a full Healthy Homes assessment for a Healthy Homes certificate. But there were issues with the tenant working full time and being unavailable to let a worker in to install the wall heater during working hours. The tenant did not want the landlord at the property when this work was being carried out.
- [The tenant/s] considers that the landlord has failed to comply with the HHS heating standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
- The heating standard requires landlords to provide one or more ‘qualifying heaters,’ with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
- The HHS does provide exemptions in specific circumstances.
- The landlord and tenant provided email and text records of conversations between the parties regarding the heating and the Healthy Homes certificate.
- The landlord stated that he was in India on 30 November 2022 when the first request came for a healthy homes certificate. He advised the tenant that he would deal with it when he got back to New Zealand. There were email conversations provided that confirm this account. The emails also confirm that the landlord had engaged two companies to carry out the work, but they were refused entry by the tenant as the times offered to come and do the work were inconvenient.
- The tenant sought a rent reduction until the certificate could be provided, which the landlord agreed too.
- The landlord advised that prior to the tenancy he had sought permission from the Body Corporation at the property to install a heat pump. That request was declined. The landlord provided heating and a fan at the start of the tenancy, and when the tenant demanded that a fixed heater be installed in December, the landlord sought to comply.
- The landlord provided a certificate of insurance at the start of the tenancy and claimed to have provided confirmation of all healthy homes’ standards compliance except for the heating. This was not denied at the hearing.
- I have not been provided with any evidence at the hearing to suggest that the bathroom fans were not complaint or broken.
- I have been provided with photographs of the property. It appears to be of a high standard and a modern property. There has been no evidence provided that would suggest that this was a non-compliant property. The landlord provided most of the Healthy Homes compliance information.
- I do not find that the landlord has committed an unlawful act. A heat pump could not be installed. Alternative heating was supplied. Attempts to provide a fixed heater and heating certificate were unable to be completed due to inability to obtain access to the property.
- The landlord has tried to comply and would have been able to carry out the work if the people were given access.
- I do not find that the tenant has proven her claim for breach of s45 RTA. Breach of Quiet enjoyment:
- [The tenant/s] claims the landlord has harassed them.
- 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". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The tenant says that the landlord harassed her over the sale of the property and the requirement to have open homes and viewings for potential purchasers. That the landlord turned up at open homes and there were requests for potential purchasers to view the property without appropriate notice.
- The tenant says the landlord would turn up when maintenance was being carried out.
- That the landlord arranged for photos to be taken of the property for the sale. The photos that were taken were put online and contained images of the tenant’s furniture and personal possessions. The tenant says these examples show a breach of her privacy and harassment.
- Unfortunately, a consequence of the sale of a property is the taking of photos that are then put online through real estate agents. The tenant was living at the property so the landlord would have not had the ability to “stage” the property with other furniture and remove the tenants’ possessions.
- Another obvious consequence of the selling of a property is the inconvenience of the open homes and viewings. The tenant refused to allow viewings without the correct notice, which is her right. The tenant did allow the open homes to take place as requested.
- The very nature of selling a property is that there is a major inconvenience and technically a breach of privacy, with other people being in your home.
- I have not been provided with any evidence that the tenant was harassed by the landlord. The tenant has not been successful in her claim for breach of quiet enjoyment.
- I am not considering the claim that the landlord was difficult when the tenant was trying to return the keys as there is no breach of the RTA for being difficult in these circumstances.
- The bond is to be refunded to the tenant immediately.
- As the tenant has been partially successful in her application, I can consider suppression of her name and details. I am ordering that the tenants name and details be suppressed.
- Because [The applicant/s] has partially succeeded with the claim I have reimbursed the filing fee.