What was Tenancy Tribunal case 4531320 about?

The tribunal order states: Kim Burnett must pay [The tenant/s] $1,270.44 immediately, calculated as

How much money was awarded in case 4531320?

Compensation: failing to provide hea…: $250.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4531320?

The primary dispute was Smoke alarms. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4531320?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736923-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4531320 about?

The tribunal order states: Kim Burnett must pay [The tenant/s] $1,270.44 immediately, calculated as

How much money was awarded in case 4531320?

Compensation: failing to provide hea…: $250.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4531320?

The primary dispute was Smoke alarms. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4531320?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736923-Tribunal_Order_Redacted.pdf.

26 Glen Road, Stokes Valley, Lower Hutt 5019 Tenancy Tribunal Case 4531320 — Smoke alarms

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Reasons

Claims and awards in Tenancy Tribunal application 4531320 — net $1,270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failing to provide healthy homes information on request	$250.00	failing to provide healthy homes information on request
Compensation: Non-compliant smoke alarm	$1,000.00	Non-compliant smoke alarm
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,270.44
Total payable by Landlord to Tenant	$1,270.44

This matter was first heard as a case conference and directions for hearing were made by order on 30 January 2024. The matter was then adjourned for the substantive hearing. Both parties attended the hearing.

The tenants have filed an application seeking compensation for the following: a. Failure to comply with the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) in relation to ventilation, draught-stopping, and moisture ingress; b. Failure to comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI); c. Failure to provide an HHS compliance statement; d. Failure to comply with a request for records and documents that relate to compliance with HHS.

A claim for failure to maintain blinds was withdrawn at the tenants’ request.

As discussed at the case conference, the tenants also sought exemplary damages for the above breaches of the RTA that are unlawful acts. However, a tenant may not apply for exemplary damages later than 12 months after the date of commission of the unlawful act. See s 109(2) RTA. The tenancy ended on 18 December 2022 and the tenants filed their application on 24 November 2023. It has been established that the claims for exemplary damages are out of time and cannot be pursued as the alleged unlawful acts were committed more than 12 months prior to the lodgement of this application.

The tenants also claimed that the termination notice issued by the landlord on 10 October 2022 was retaliatory, for which the tenants sought compensation and exemplary damages under s 54 RTA. However, as also discussed at the case conference, tenants are required to apply for an order declaring a notice retaliatory within 28 working days of receiving the termination notice. The tenant’s application is out of time and cannot be pursued. Preliminary issue as to whether the tenancy was renewed or a new tenancy entered after 1 July 2021

Compliance dates for HHS vary depending on the tenancy. For private rentals, if the tenancy commenced before 1 July 2021 and was not renewed after that date, then the compliance date is 1 July 2025 (extended on 26 November 2022 from 1 July 2024 to 1 July 2025 pursuant to the Residential Tenancies (Healthy Homes Standards) Amendment Bill 2022. However, for any new or renewed tenancy commencing between 1 July 2021 and 27 August 2022, the premises must comply within 90 days of the commencement date. For any new or renewed tenancy commencing between 28 August 2022 and 2 March 2025, the premises must comply within 120 days of the start date.

The tenants argue in this case that a new or renewed tenancy was entered on 18 July 2021 so that the rental was required to comply with HHS within 90 days of that date. The landlord disputes that the tenancy was new or renewed and claims that the tenancy was effectively extended by becoming a periodic tenancy and she was not required to comply with HHS until 1 July 2024 ( later extended to 1 July 2025).

Accordingly, the first issue to determine is whether the tenancy agreement was new, renewed or extended after 1 July 2022.

The RTA and the HHS do not define or clarify the difference between a renewal or extension of a tenancy agreement. Looking at the law regarding commercial leases for guidance, the Courts have established that the two terms are distinct from one another. However the terms can sometimes be confused with each other by loose terminology. In summary the following principles can be extracted regarding commercial leases taken from the leading New Zealand textbook 1 on the topic: a. An extension of a lease means any covenants previously agreed to in the lease carry over to the extended lease and privity of contract remains. This means a third party cannot intervene in the lease agreement and all previous covenants are carried over to the extension; b. In contrast a renewal of a lease acts as an entirely new lease where all previous agreements between the parties on the previous lease are no longer in force, and the parties no longer have privity of contract. The lessee cannot be held liable for any liabilities on the previous lease agreement; c. Toomey refers to a passage in Halsbury’s Laws of England, where the Court of Appeal in WE Wagner v Photo Engravers Ltd, held 2 : “Where a lease contains an option to renew the lease the exercise of the option will ordinarily involve the creation of a new lease, and as regards the new lease there will be no privity of contract between the landlord and the original lessee under the old lease which contained the option to renew; however, the right given to a tenant may be simply to extend the term, in which case privity of contract will endure between the parties, even during the extended term. The original lessor may sue either the original lessee or the assignee or both at the same time, but he can only obtain one satisfaction.” 1 Toomey (ed) New Zealand Law (3 rd ed, Thomson Reuters, Wellington, 2017 at {48.R.8.13.10 (2)&(3)} 2 Toomey “New Zealand Law”, above n 1 at {48.R.8.13.10} referencing David N Clarke Halsbury’s Laws of England (4 th ed, LexisNexis 2006) at [389] citing Wagener Ltd v Photo Engravers Ltd [1984] 1 NZLR 412 at 425 d. The question in any case, that should be asked, is whether the parties intended that the original lease should either be extended or whether a new lease should be arranged at the end of the original lease agreement; e. As in any contract dispute, what the parties intended the terms of the contract to be, will prevail. Each case must be assessed on its factual matrix.

To determine the parties intentions and whether the tenancy becoming periodic was a new tenancy, a renewal or an extension, the timeline of events and the discussions between the parties during the tenancy is important and may be summarised as follows: 1 July 2020—Both parties signed the fixed term tenancy agreement starting 17 July 2020 and ending 17 July 2021. The agreement was prepared by a letting agent on behalf of the landlord; December 2020—The tenants met the landlord for the first time. The tenants say that they raised an issue about whether the landlord could install an extractor fan in the kitchen; 17 July 2021—the fixed term lease expired. There is no evidence of any discussions taking place prior to this date about options to end, extend or renew the fixed term tenancy. At the time, section 60A RTA (i.e. the version as it applied to fixed term tenancy agreements that commenced before 11 February 2021) provided as follows: (1)On the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms are consistent with a periodic tenancy. (2)Subsection (1) does not apply if— (a)the parties enter into a new tenancy agreement or agree to extend the existing tenancy agreement; or (b)within the effective period, either party gives the other written notice of the party’s intention not to continue with the tenancy. (3)The effective period is the period that starts on the 90th day before the date on which the tenancy expires and ends with the 21st day before that date. There is no documentary evidence that the parties either discussed or agreed to enter a new tenancy or agreed to extend the existing tenancy prior to the fixed term expiring. Certainly, no agreement was signed. It follows that on the expiry of the fixed term, I find that this tenancy continued as a periodic tenancy on the same terms, being the default position in s60A(1). 18 July-1 September 2022—At some point after the fixed term expired, it seems that the parties discussed continuing with a periodic tenancy. Neither party appeared to be aware of s60A and that the tenancy had already become a periodic tenancy. The landlord prepared a tenancy agreement using the standard RTA form available on the Tenancy Services website. The tenants were only able to provide in evidence a copy of two pages of this tenancy agreement: Page 4 containing pre-printed standard notes about the RTA and the parties obligations; and the signing page which recorded a periodic tenancy with a start date of 18 July 2021. This page also contained a handwritten clause about notice required to terminate the tenancy and incorrectly stated that both parties may give 28 days’ notice to terminate. Only the tenant can give 28 days’ notice. The agreement was signed by the landlord only as follows: The tenants gave evidence that they signed this tenancy agreement on 1 September 2021 but neither party could produce a copy of the agreement signed by both parties. The tenants confirmed that they did not raise any issues with the landlord at the time of entering the periodic tenancy about maintenance or healthy homes standards. 8 February 2022—The landlord served a rent increase notice on the tenants; 9 February 2022—The tenants emailed the landlord to request some improvements to the property given the rent increase. They asked whether an extractor fan which had been discussed in December 2020 might be installed, whether additional heating could be considered, and some other general maintenance items; 10 February 2022—The landlord sent a reply email agreeing to “start working on” the requests; 21 July 2022—The landlord received a letter from Well Homes (established under a Ministry of Health programme) advising that they had conducted a healthy housing assessment at the premises. This was a referral after the tenants’ child was admitted to hospital the year prior with a respiratory illness. Well Homes stated that their physical check was aimed at identifying any structural issues which would cause the home to be cold, damp, or hard to heat. They also provided advice to the tenants about managing the indoor environment. They advised that they had not conducted a detailed assessment to determine compliance with HHS and did not detail any potential issues. They simply recommended that the landlord obtain a detailed assessment and provided a list of service providers for that purpose. 21 July 2022—The tenants wrote to the landlords to “see where things are at with bringing the house up to compliance with the Residential Tenancies Act 1986-(Healthy Homes Standards) Regulations 2019” and requested that the landlord remedy two specific issues within 21 days. First, they requested that the landlord provide a “compliance statement” covering the 5 healthy homes standards. Secondly, they requested an “insulation certificate or exemption certificate”, alleging that this was not provided in the tenancy agreement signed in July 2020. They refer to this document as the Notice to Remedy. They also again asked whether additional heating could be provided; a kitchen extractor fan installed; advised that the bathroom extractor required repair and raised other maintenance issues; 21 July to 19 December 2022—many emails were exchanged between the parties regarding issues raised by the tenants with the landlords attending to several items and obtaining their own detailed HHS assessment. However the landlords did not install a kitchen extractor nor provide the requested compliance statement and insulation certificate prior to the tenancy ending on 19 December.

The tenants initial submission was that when they agreed to enter a periodic tenancy they asked the landlord about a kitchen extractor again and for additional heating, which relates to HHS. Therefore, this reinforced their understanding that they entered a new tenancy agreement, and the premises would have to comply with HHS. However, they later acknowledged that they were mistaken about the dates, and they did not raise these issues in any detail with the landlord until they sent an email to her on 9 February 2022 following a notice of rent increase. This is more than 6 months after the tenancy became periodic.

The tenants also submit that during these later email exchanges with the landlord, in particular the Notice to Remedy sent on 21 July 2022, it was clear that their requests were being made in relation to the landlord’s obligations under HHS. They highlight that the landlord only ever responded positively advising that she would look into the issues. She never advised them that she did not need to comply with HHS until 1 July 2024. The tenants say this indicated to them that she was addressing the HHS issues and they were never led to believe that the HHS was not “in play”. They say this added to their impression that they had entered a new tenancy.

The landlord says that she is a first-time landlord. The premises were bult by the landlord and her husband in 1992 and they lived in it as their family home until they relocated to Napier in 2020. She understood that entering the periodic tenancy meant the lease could be terminated more easily. She says that other than extending the tenancy (for an open-ended period), all other terms of the tenancy and the parties to the agreement remained the same. A periodic tenancy suited her better as it gave more flexibility should she wish to sell this property, and the property was indeed sold in 2023.

While the landlord understood that she had until 1 July 2024 to comply with HHS, when the tenants raised issues, she says that she agreed to look at them and felt she was doing the right thing.

After carefully considering the available evidence, I am not satisfied that a new or renewed tenancy was entered into by the parties after the fixed term expired on 17 July 2021. There is no evidence of communications between the parties prior to the expiry date that supports what either party’s intention may have been at the time. I find it likely that neither the landlord nor the tenants knew or understood the effect of s60A and that the tenancy automatically became a periodic tenancy on the expiry of the fixed term. The fact that a periodic tenancy agreement was prepared and signed more than a month after the fixed term expired supports that finding. The parties did not appreciate that, by default, the tenancy had already become a periodic tenancy on 18 July 2021 and was neither a new tenancy nor a renewal of the fixed term tenancy.

While the tenants argue that the landlord’s positive reception to their requests for an extractor fan, additional heating and HHS compliance information enforced their belief that there was a new tenancy, I find it more likely that this belief developed many months after the periodic tenancy was in force and was not front of their minds when they entered the periodic tenancy because their requests referencing HHS were made several months after the periodic tenancy started.

I accept that the landlord indicated to the tenants that she would look into their various requests concerning HHS compliance and did not tell them that she believed she did not need to comply until 1 July 2024. However, I also accept that a landlord wanting to keep a good relationship with tenants would be open to those requests and would want to address matters where possible. Many of the matters raised by the tenants were addressed, including the landlord obtaining a detailed HHS assessment. She also kept them informed after they served the Notice of Remedy that she was having difficulty obtaining the insulation certification they sought.

In summary, I am satisfied on the evidence, that by default under s60A, on the expiry of the fixed term tenancy on 17 July 2021, it automatically became periodic. Documenting the periodic tenancy in an agreement several weeks later (the landlord signed it on 27 August 2021 and the tenants say they signed on 1 September 2021) was not a new tenancy agreement, but a document that recorded the position of the parties. The agreement effectively extended the term of the tenancy by making it periodic. The parties to the periodic tenancy agreement remained the same and the terms of the tenancy remained the same except that the end date was now indefinite. I find no evidence that the parties intended to create a new tenancy agreement and they certainly did not renew the fixed term tenancy agreement. I find that privity of contract remained between the parties and each could be held liable for their obligations under the previous tenancy agreement.

Has the landlord breached their obligations under HHS?

Given my finding that the tenancy, which commenced on 17 July 2020, was not renewed and nor was a new tenancy entered after 1 July 2021, the compliance date for HHS regarding ventilation, draught-stopping and moisture ingress was 1 July 2025. The landlord obtained a healthy homes assessment on 29 September 2022 (“The HHS report”) which identified work required to bring the property up to the HHS standards including installing a kitchen extractor; installing a moisture barrier, and some draught-stopping work to the front door and three windows. However, the landlord was not in breach of the time frames for completing the work. Therefore, the claims must be dismissed. Has the landlord breached their obligations under SAI regarding smoke alarms?

Under section 45(1)(ba) RTA, a landlord must comply with all requirements in respect of smoke alarms set out in SAI which came into force on 1 July 2016. Specifically, at the commencement of the tenancy, the premises must have qualifying smoke alarms in the sleeping spaces; or otherwise within 3 metres of the entrance to the sleeping spaces; and a qualifying smoke alarm must also be installed on every storey or level on which there is 1 or more habitable spaces. See regulations 5(6),(7) and (8) SAI.

A qualifying smoke alarm must either be a photoelectric alarm that complies with regulation 7 or a hard-wired alarm that complies with regulation 8.

The landlord’s HHS report concluded that a qualified smoke alarm was required in the master bedroom. Both parties agree that the reference to the master bedroom is the rumpus room on the second floor at the top of the stairs. There is a smoke alarm on the second floor within 3m of the rumpus room but it is not a qualifying alarm because it is neither a photoelectric or hard-wired alarm.

The landlord argued that the hard-wired alarm in the hallway of the ground floor was within 3m of the rumpus room. However, the regulations make clear that there must be a qualifying alarm on every level of the house.

I am satisfied on the evidence that the landlord was in breach of their smoke alarm obligations during the tenancy which is an unlawful act. Usually, the appropriate remedy would be to award exemplary damages. However, as already advised, the tenants did not bring their claim for exemplary damages within the time limits so I cannot consider them. However, I award compensation of $1,000 to reflect the upset and concern that this would have caused the tenants when they discovered that the smoke alarm was not compliant and the seriousness of the breach. The award is moderate as I have taken into account that there was a compliant smoke alarm on the ground floor and that the smoke alarm on the second floor, while not compliant, was in working order.

Has the landlord breached their obligations under SAI regarding insulation?

The tenants claim that the landlord has breached their obligations under section 45(1)(bb) RTA by failing to insulate the premises in accordance with the SAI.

From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.

Regulation 17 SAI sets out the matters that must be taken into account when determining whether insulation installed prior to 1 July 2016 was in reasonable condition.

When the SAI came into force, Tenancy Services also published a rule of thumb for assessing compliance with insulation installed before 1 July 2016. If the minimum depth of the insulation installed before 1 July 2016 was less than 70mm, or was damaged or damp, new insulation should be installed. The purpose of the rule of thumb was to provide guidance for landlords and tenants on the effect of degradation from settling, which can be difficult to assess visually. Any insulation with a depth of less than 70mm would not be considered in reasonable condition.

Where insulation is installed after 1 July 2016 or requires upgrading or major repairs after that date, 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. In addition, the insulation must comply with the higher insulation standards in the HHS by the compliance timeframes in those regulations, regardless of when the existing insulation was installed.

There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.

The HHS report found that the underfloor insulation comprised of bulk insulation installed over foil insulation. The report notes that to comply with the HHS requirements (which would have come into effect for this tenancy on 1 July 2025, if it was still on foot) the foil insulation must be removed. The report otherwise noted that the underfloor insulation was 80mm+ thick and in good condition.

The landlord confirmed that the additional blanket insulation was installed on top of the foil in 2016 through the Wellington Regional Council which was offering homeowners subsidies to have the work done at the time. She says that professional installers came and did the work.

The presence of foil insulation installed before 1 July 2016 was permitted unless it was not in reasonable condition. The HHS report comments that the insulation is in good condition. Therefore, there is no proof that it was damaged or not in a reasonable condition. Therefore, I accept that the landlord was not required to upgrade the underfloor insulation prior to the HHS compliance date. For that reason, the claim is dismissed. Did the landlord fail to provide an HHS compliance statement in the tenancy agreement?

The tenant claims the landlord has not included insulation details and other HHS information in the tenancy agreement.

A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) RTA.

Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) RTA.

In addition, a landlord must also include a signed statement in the tenancy agreement ( and in any variation or renewal of the tenancy agreement) that on or after the commencement of the tenancy (or after the variation or renewal takes effect) the landlord will comply with all other healthy homes standards and include the information (if any) prescribed by the HHS regulations See section 13A(1CA) and (1CB) RTA.

I find that the original tenancy agreement included the required compliance statements and nothing further was required once the tenancy became periodic. That is because, as per the findings made above, the terms of the periodic tenancy were not a variation of the original tenancy agreement and nor was the periodic tenancy a new or renewed tenancy agreement.

Did the landlord fail to provide HHS information requested by the tenants?

Under section 45(1AC), a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

On 10 October 2022, the tenants asked the landlord to supply them with a copy of the HHS report. The landlord did not supply a copy until 30 November 2022 after the tenants had followed up on their request several times. The landlord said that she did not think she was required to provide it given that she had given notice to terminate the tenancy. However, she was obliged to do so regardless of the termination notice. This breach is also an unlawful act. Usually, the appropriate remedy would be to award exemplary damages. Because the tenants did not bring their claim for exemplary damages within the time limits, I cannot consider them. However, I award a nominal amount of $250 compensation for the failure to comply with the tenants’ request which I consider is justified.

The tenants also claim that the landlord failed to provide them with a copy of the insulation certificate requested by them on 21 July 2022. I accept that that the landlord could not find any documentation in their possession from Wellington Regional Council (WRC) concerning the insulation installed in 2016. She also said that WRC did not respond to her request for information. Therefore, I accept that it was not available for disclosure.

As the tenants have succeeded with some of their claims, they are entitled to reimbursement of the filing fee. They have also mostly succeeded with the claims that could be pursued. Therefore, their names and identifying details are suppressed as requested.

Reasons

Claims and awards in Tenancy Tribunal application 4531320 — net $1,270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failing to provide healthy homes information on request	$250.00	failing to provide healthy homes information on request
Compensation: Non-compliant smoke alarm	$1,000.00	Non-compliant smoke alarm
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,270.44
Total payable by Landlord to Tenant	$1,270.44

A claim for failure to maintain blinds was withdrawn at the tenants’ request.

Accordingly, the first issue to determine is whether the tenancy agreement was new, renewed or extended after 1 July 2022.

While the landlord understood that she had until 1 July 2024 to comply with HHS, when the tenants raised issues, she says that she agreed to look at them and felt she was doing the right thing.

Has the landlord breached their obligations under HHS?

A qualifying smoke alarm must either be a photoelectric alarm that complies with regulation 7 or a hard-wired alarm that complies with regulation 8.

Has the landlord breached their obligations under SAI regarding insulation?

The tenants claim that the landlord has breached their obligations under section 45(1)(bb) RTA by failing to insulate the premises in accordance with the SAI.

Regulation 17 SAI sets out the matters that must be taken into account when determining whether insulation installed prior to 1 July 2016 was in reasonable condition.

The tenant claims the landlord has not included insulation details and other HHS information in the tenancy agreement.

Did the landlord fail to provide HHS information requested by the tenants?

Tenancy Tribunal case 4531320 — Smoke alarms at 26 Glen Road, Stokes Valley, Lower Hutt 5019

At a glance

Tenancy Tribunal case 4531320 — Smoke alarms at 26 Glen Road, Stokes Valley, Lower Hutt 5019

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord breached their obligations under HHS?

Has the landlord breached their obligations under SAI regarding insulation?

Did the landlord fail to provide HHS information requested by the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord breached their obligations under HHS?

Has the landlord breached their obligations under SAI regarding insulation?

Did the landlord fail to provide HHS information requested by the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions