What was Tenancy Tribunal case 4542829 about?

The tribunal order states: The parties’ names and identifying details, including the premises’

How much money was awarded in case 4542829?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4542829?

The primary dispute was Rent arrears. Related themes: Leaks, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4542829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9500751-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4542829 about?

The tribunal order states: The parties’ names and identifying details, including the premises’

How much money was awarded in case 4542829?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4542829?

The primary dispute was Rent arrears. Related themes: Leaks, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4542829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9500751-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4542829 — Rent arrears

Order

The parties’ names and identifying details, including the premises’ address must not be published.
[The landlord] must immediately pay [The tenants] $3,903.30, as calculated in the table below: LandlordTenant Rent arrears to 9 October 2022$12,435.71 Bond received to be repaid directly to tenants $3,221.43 Compensation for loss of amenity: water ingress $8,597.14 Compensation for loss of amenity: HHS $500.00 Compensation for excess power use Compensation for pest infestation $300.00 $300.00 Compensation for loss of amenity: water supply $2,550.00 Compensation for the cost of bottled water $350.00 Exemplary damages for landlord’s unlawful entry $500.00 Filing fee $20.44 Subtotals$12,435.71$16,339.01 Net amount landlord must pay $3,903.30 Bond remainder to tenants $178.57
The Bond Centre is directed to pay the remaining bond of $178.57 to [The tenants] immediately
It is declared that the term of the fixed-term tenancy of [the tenants] at [Tenancy address suppressed] is reduced and ended at the end of 9 October 2022.
The parties’ claims are allowed as set out in this order and its

Reasons

. All other claims between the parties under the Residential Tenancies Act 1986 are dismissed.

It is declared the Tribunal does not have jurisdiction to hear any claim between the parties pertaining to an agreement between [the landlord] and [Tenant’s name] Family Trading Company Ltd for the company to carry out remedial works at the premises.
It is declared the Tribunal does not have jurisdiction to hear any claim between [the landlord] and Ideal Real Estate. REASONS: Introduction
The tenants and the landlord (who also owns the premises) attended the hearing.
The hearing was conducted on 14, and 15 September 2023.
This was a rehearing of the Tribunal’s decision dated 22 February 2023, which was also involved a two-day hearing. 1 That decision was also in part a rehearing of the Tribunal’s decision dated 30 August 2022. 2
The landlord’s former agent, Ideal Real Estate Limited, did not attend this hearing for the landlord because the landlord has terminated the agency. A former property manager, Allan Woodford, attended the 20, 24 January 2023 under summons from the tenants, but no one from the former agent was summonsed on this occasion. 3
The hearing was a hearing de novo. That is, everything was heard afresh.
The tenants claim the landlord failed to comply with his maintenance and Healthy Homes standards obligations, failed to provide healthy drinking water, and unlawfully entered the premises. For remedies, they seek compensation 1 Tenants v Landlord [2023] NZTT 4426441, 4381451. 2 Tenants v Ideal Real Estate Limited acting agent [2022] NZTT 4338575. 3 Note 1 at paragraph 17 the Tribunal commented that Mr Woodford “did not really assist the Tribunal other than to suggest there was a dispute between the landlord and Ideal Real Estate, which is beyond the jurisdiction of this Tribunal”. and exemplary damages. They also seek an order that the tenancy’s fixed term be reduced.
The landlord claims for rent arrears and for damage to the premises. He seeks the arrears and compensation. Background
This case comes about against the background of the tenancy house’s design and construction problems.
The premises’ house was built in 1960. The house was simply built, and probably to what were acceptable standards at the time for a rural area. Some of the construction methods – most notably in this case, the groundworks and drainage – have been found wanting.
The premises is on water tank supply, rather than a public reservoir supply. The house has two levels. Downstairs has two bedrooms, a bathroom, kitchenette, and a rumpus/living room area. Upstairs, also has two bedrooms and a bathroom, a full kitchen, and a dining/living area.
While the house is modest, it is situated on a large, bush-clad section of perhaps six acres.
For reasons that were not been fully explored in the hearing – there were no independent expert builders called to give evidence for example – the house has been found to have significant maintenance/repair issues since the landlord purchased the premises in about 2016.
The premises were the subject of a claim before the Tribunal in 2020. In that case, the Tribunal found the premises were not provided or maintained in reasonable state of repair. The Council had already issued notices under the Building Act 2004 for the house not being safe or sanitary. The Tribunal ordered the landlords to pay that tenant over $16,000.00. 4
Since that decision, the landlord, who works as a bus driver, has spent well over $120,000.00 to repair the house and the unsafe and unsanitary notices no longer apply. In about 3 September 2020, the water tank was cleaned, and a new water filter was installed at a cost to the landlord of $1,695.79.
The expense of repairing the house have been challenging for the landlord. The situation has been exacerbated by the landlord living principally in Korea since he bought the property. He had not visited New Zealand for four years, and only returned in about 1 May 2022, after his father passed away. 4 O’Kane v Ideal Real Estate Limited as agent [2020] NZTT North Shore 4211222.
A professional inspection company, Enstall Insulation Limited, conducted a Healthy Homes Standards inspection of the property on 8 November 2021 (about six months before the tenancy began. The report’s findings included that: a. Insulation needed to be installed in the underfloor. b. The closed wood burner met the heating standard. c. The kitchen rangehood was not vented to the outside. d. A downpipe was discharging directly onto the ground “possibly flowing underfloor” and the gutters needed cleaning. e. There were excessive draughts due to poorly fitting windows and an external door.
Ideal Real Estate got Enstall to install the required insulation. The landlord got his contractor TNS Construction Limited address at least some of the other work needed for health homes compliance. TNS’s building report on repair work indicates some door gaps were fixed.
In the months before the tenancy began, the relationship between the landlord and Ideal Real Estate broke down. The landlord had spent a lot of money on getting the premises up to a rentable standard and was anxious that the premises were not being let and earning rent. Ideal Real Estate were trying to ensure the premises were Healthy Homes Standards compliant before reletting it, but the landlord seems to have lost faith in the company and begun to mistrust it. He was reluctant to pour more money into the house unnecessarily. By March 2022, the landlord was threatening to sue.
The landlord says he had terminated his relationship with Ideal Real Estate before the tenancy even began and he was not consulted about it. In fact, he was intending to move back to New Zealand and live in the premises himself. It was only when he got to New Zealand after 1 May 2022 and contacted Ideal Real Estate to get his keys back that he discovered to his surprise that the premises had been let.
By then, the tenants were already experiencing major problems with the premises. Tenant’s problems with the premises
The tenants say the basement flooded about two days after they moved in on 14 April 2022 and water continued to leak into the area from then on. By about the end of the first week of the tenancy, they had moved their children upstairs and their flatmate had moved away. While April of 2022 was not a particularly wet month, the water ingress was worse when it rained. The dampness led to mould. Before long, the tenants found mushrooms growing in the rumpus room’s corner.
The family of four - the tenants and their two young children - were now only fully occupying about 50 per cent of the original floor area of the house. They did not feel immune to the conditions downstairs even though they had moved out from the there. Upstairs was open to the downstairs, so damp mouldy air rose from below. They now had only two rather than four bedrooms, so the tenants slept in the lounge and their children who had some health challenges slept in the bedrooms.
Worse was to follow. The tenants had noticed the tap water was discoloured from early in the tenancy. But they soon realised their water supply was probably contaminated after they and one of their children in particular got severely ill from drinking it.
Ideal Real Estate commissioned a respected expert assessment company All Clear to conduct drinking water quality and moisture assessments, which were conducted in early May 2022. The results were bad.
Coliforms were detected a water sample taken from the kitchen tap, which All Clear said “usually indicates the presence of other pathogens, protozoa and viruses in the water supply”. The implications were noted as “[c]an cause infections, stomach pain and nausea”. The rainwater tank had a large crack and the water itself contained minor debris.
All Clear recorded excessive moisture readings in walls and floors of rumpus room and a downstairs bedroom door frame. These were wet to touch. It found: -Possible structural/design issues with the concrete flooring in the rumpus room allowing moisture to penetrate the substrate and rise into the room. Due to concrete’s porous nature moisture can easily travel through it, causing issues in the flooring above. -Possible leak or wetting within the internal wall between the downstairs shower and rumpus room. The elevated moisture readings and location of the mushrooms indicate an excessive level of moisture has likely been present for an extended period of time in this area.
The tenants’ commissioned a Healthy Homes Standards Report also. Habitat for Humanity’s inspection report of 4 May 2022 recorded: a. The closed burner did not meet the standards. Heat pump recommended. b. Water ingress into lower level from various walls. c. Lower-level bathroom extractor fan not working properly. d. Two external doors have excessive gaps, allowing draughts.
The tenants also suffered from a rodent infestation. Habitat Humanity noted “Rodent signs present (droppings)”. The tenants dealt with the pest problem themselves at a cost of about $300.00.
After the tenants and the landlord met, they initially got on well. The tenants ran a landscaping firm, and the landlord agreed with the firm for it to replace the water tank and do ground works to address the leak issues.
The firm replaced the water tank on 22 June 2022 and carried out significant groundworks. However, the work came to a halt after the landlord unexpectedly went to the premises on 17 August 2022 and found several holes in the wall and that the lower deck had been removed. The landlord was distressed at what he found and the arrangement to remediate the premises problems in return for a rent reduction over three years foundered.
The tenants explain their firm had made holes in the gib to try and track where the water was coming from and the old deck had to be removed to remove earth that was higher than the level of the floor, enabling water to enter.
The landlord decided that the tenants’ landscaping firm was doing more harm than good. The parties fell out. The tenants’ firm’s efforts ceased.
The tenants had moved out about four weeks later. The issues for determination
The issues for determination are: a. Did the landlord fail to provide and maintain the premises to a reasonable state of repair and fail to comply with his Healthy Homes

Standards obligations?

b. Did the landlord fail to provide access to healthy water? c. Did the landlord unlawfully enter the premises? d. Should the fixed-term tenancy be reduced? e. Should the tenants pay rent arrears? f.Did the tenants damage the premises?

Did the landlord fail to maintain the premises and comply with the HHS?

The tenants claim the landlord did not maintain the premises in a reasonable state of repair and did not comply with the Healthy Homes Standards. Legal principles
Under s 45(1)(b) and (bb) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair and comply with the healthy homes standards. Those provisions state: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes... ... (bb) comply with the healthy homes standards...
Breaching these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A of the RTA.
Landlords are liable for maintenance defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 5 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 6 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 7 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... 5 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. Footnotes not included except for see n 6. 6 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 7 See n 5.
Under s 45(1)(bb), the landlord had to meet the Healthy Homes Standards in respect to heating, ventilation, water ingress, and draught stopping by 13 July 2023. Discussion
I am satisfied that the lower level of the house was not fit for ordinary occupation from about 16 April 2023 due to water ingress.
I accept the tenants’ evidence that the problem was not resolved up until the end of the tenancy and they could not much use the downstairs. The damp conditions were a risk to human health particularly downstairs but also may have affected the upstairs area also.
There was a rodent infestation problem which was a landlord responsibility also.
It is not clear whether the home met the heating standard because the reports conflict. It is likely the premises did not meet the draught stopping standard, or the ventilation standard within the required time frame. Water ingress has already been mentioned. Conclusion
It follows the premises were not maintained to a reasonable standard of repair and did not meet the Healthy Homes Standards. Remedies
I have regard to the tenants’ loss of amenity in the premises. The downstairs is about half of the total floor area. There is a kitchenette downstairs, but the main kitchen is upstairs. The main living area would more naturally be upstairs also. Although downstairs were damp, the tenants could still store some items there and use the rooms for brief periods. On one occasion, family members stayed overnight.
I set the tenants’ loss of amenity at 40 per cent of the weekly rent, which amounts to $340.00 per week.
There was also a lack of draught stopping and inadequate ventilation. I order the landlord to pay $500.00 for loss of amenity associated with those breaches of the standards.
I accept the tenants’ evidence that they had to use extra power because of these issues. I allow $50.00 per month for that for the six months of the tenancy, which amounts to $300.00.
I also order $300.00 for the rodent infestation. The tenants did not provide evidence of the cost of pest control, but there was a loss of amenity which should be compensated.
The Tribunal may award exemplary damages where “the Tribunal is satisfied that the person against whom the order is sought committed the unlawful act intentionally”. 8
I am not satisfied the landlord intentionally failed to provide and maintain the premises in a reasonable state of repair. I accept the landlord’s evidence that he fell out with Ideal Real Estate. He had wanted to rent the premises and was frustrated at the cost of getting the premises up to standard. He bitterly argued with Mr Choi of Ideal Real Estate, and he was unaware the premises would be let. He was genuinely surprised when he returned to New Zealand to find he could not move into the premises himself due to the tenancy.

Did the landlord fail to provide healthy drinking water?

Under s 45(1)(ca) of the RTA: (ca) if the premises do not have a reticulated water supply, provide adequate means for the collection and storage of water; and
Under regulation 7 of the Housing Improvement Regulations 1947, kitchens must have an adequate supply of potable water. “Potable water” is water that is safe to drink and complies with the drinking water standards. 9
Under s 123 of the Building Act a building is unsanitary if it does not have a supply of potable water that is adequate for its intended use.
Water should be potable out of the tap. Tenants should not have to further treat the water by boiling or using their own filtration equipment. In this case, the landlord’s agent did not advise the tenants that they should take any further steps to make the water drinkable. Findings
The evidence the water was contaminated is cogent. 8 RTA, s 109(3). 9 See Health Act 1956, s 2.
The tenants had noticed the water was discoloured and smelt bad before All Clear’s analysis showed that the water was not suitable for drinking.
I find it proven on the balance of probabilities that the water was not potable from the beginning of the tenancy until 22 June 2022 when the tank was replaced. Remedies
Little could be more essential to habitable living conditions than drinkable water. Water that makes the tenants sick is a serious breach of the landlord’s duties under several enactments.
I calculate the tenants’ loss of amenity due to not having potable water on tap at 30 per cent. I order payment at the rate of $255.00 for the 10-week period that the water was not potable.
I accept the tenants’ evidence that they had to buy bottled water. They should be compensated for that loss also. The tenants paid about $11.00 for large bottles of water and about $4.00 for smaller bottles. I am satisfied the tenants spent at least $350.00 purchasing bottled water. The Tribunal orders compensation in that amount.
For the reasons discussed above, I am not satisfied that the landlord intentionally failed to supply potable water. Therefore, the Tribunal has no power to award exemplary damages.

Did the landlord unlawfully enter the premises?

Landlord’s entry

On 17 August 2022, the tenants allowed a heat pump installer into the premises to install a heat pump which the landlord had arranged for the premises.
While the tenants were out the landlord entered the premises and engaged with the contractor.
When the landlord had gone to the house, he had thought he would find one of the tenants there and they would be happy for him to come through. However, when he arrived both the tenants were out, he thought it would do no harm to go onto the premises to have a look at how the heat pump installation was going. When he went in, he noticed that some holes had been cut into a wall near the heat pump. He was disappointed with what he saw and took photographs of the holes, which he texted to the tenants for their explanation. He also saw that the lower deck had been removed. Legal principles
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections, repairs, and maintenance.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. 10 Findings
The landlord entered the premises without consent or notice.
I find they have committed an unlawful act. Exemplary damages
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. 11
The landlord gave little thought to the fact he was unlawfully intruding onto the premises. He likely did not understand the law and felt that the tenants would not mind because they were on amiable terms.
The landlord’s intent was not malicious. However, because the landlord gave no notice, the tenants did not get the opportunity to explain what was going on at the premises beforehand. The holes in the wall were for exploratory purposes to find leaks. The old deck had to be removed to address the water leak problem. Because he had not been told about the works, the landlord got upset at what he saw, and the tenants got upset by the landlord’s hostile attitude and the fact he had gone onto the premises without their consent. The tenants’ interests favour an award of exemplary damages. The public interest requires an apposite award to deter other landlords from taking the limitation on their entry rights lightly. 10 RTA, s 48 (4)(a) and Schedule 1A. 11 RTA, s 109(3).
I order the landlord to pay $500.00 in exemplary damages for the unlawful entry.

Should the term of the tenancy be reduced?

The tenants apply for reduction of the fixed-term tenancy which was due to end on 13 April 2023.
The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. 12
There was an unforeseen change in the tenants’ circumstances. They had thought the premises would be provided in a reasonable state of repair, would be compliant with the Healthy Homes Standards within the appropriate time, and would have drinkable water. They had cooperated with the landlord to address the premises’ shortcomings, but that attempt failed. The tenants moved out of the premises by 20 September 2022.
The landlord says Tenancy Services advised him not to take possession of the premises until the Tribunal determined the matter. I am not sure there was any obstacle to the landlord taking possession of the premises given the tenants had moved out, but I accept the landlord did not move into the premises.
I recognise the landlord will suffer hardship by having the term of the fixed-term tenancy reduced.
I consider the tenants’ hardship arising from not reducing the tenancy would be greater than the landlord’s if the tenancy were reduced. The premises remained less than acceptably habitable, albeit the drinking water had been made safe and the majority of the causes of the leaks had been eliminated.
The parties had fallen into dispute, so the remediation was at a standstill. Tenants should not be made to accept living in substandard conditions.
I set the end date of the tenancy as 9 October 2022. That date is 28 days after the tenants’ text (dated 11 September 2023) which made it clear that they would be out of the premises by 20 September 2022. 13 12 RTA, s 66(1).

Should the tenants pay rent arrears?

The tenants must pay rent arrears, calculated to the end of the tenancy on 9 October 2023.

Should the tenants pay for damage to the premises?

To succeed in a compensation for damage claim, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage.
Tenants are liable for the actions of people at the premises with their permission. 14
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent).
The test for ascertaining carelessness is whether the tenant or the other occupants were reasonably prudent in their actions pertaining to the events that caused the damage.
The landlord wants to claim for damage relating to the tenants’ landscaping firm’s work, such as removing the deck and making holes in the wall. That is not within the Tribunal’s jurisdiction. He may bring a claim in the Disputes Tribunal if he wishes.
The landlord claims the tenants damaged the downstairs carpet by pulling up part of it. However, the carpet tiles were pulled up because they were waterlogged and to try and find the source of the leak.
The landlord claimed the tenants had stained the upstairs carpet. He had a photograph of stains on the carpet taken after the tenancy ended. However, the did not produce pre-tenancy photographs to show that the carpet was not stained before the tenancy began. 13 Under RTA, s 66(2), where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. The Tribunal makes no order for this in the circumstances. 14 RTA, ss 40(2)(a), 41, and 49B.
I am not satisfied that the stains occurred during the tenancy or that the stains could not be removed by cleaning.
The landlord raised other claims such as wardrobe doors having been removed. However, the doors had been removed prior to the tenancy beginning.
The landlord claimed the tenants had damaged some concrete, but it was not established the concrete was not in the same state prior to the tenancy beginning. Similarly, the landlord submitted the tenants had damaged door flashings.
It became apparent that the landlord’s claims that the tenants (I am not speaking of the firm’s actions here) had damaged the premises were speculative. The landlord was out of the country at the time of the previous tenancy and the beginning of this tenancy. He was not in a position to comment meaningfully about the state of the premises prior to the tenancy and whether the tenants had damaged anything.
The landlord’s claim against the tenants for damage to the premises is not proved and it is dismissed. Non-publication
The parties seek non-publication orders.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 15
The parties have each been substantially successful in the proceedings. I do not consider that publication is in the public interest of is justified by the parties’ conduct or any other circumstances of the case. I have considered whether the premises address should be published given it is the subject of a claim for being in a poor state of repair for a second time and potential purchasers might benefit from reading the Tribunal’s findings. However, another owner can be expected to deal with the premises differently. Any sensible potential purchaser would have the house professionally inspected prior to purchase. 15 RTA, s 95A(1).

Tenancy Tribunal case 4542829 — Rent arrears

Tenancy Tribunal case 4542829 — Rent arrears

Order

Reasons

Standards obligations?

Did the landlord fail to maintain the premises and comply with the HHS?

Did the landlord fail to provide healthy drinking water?

Did the landlord unlawfully enter the premises?

Should the term of the tenancy be reduced?

Should the tenants pay rent arrears?

Should the tenants pay for damage to the premises?

Order

Reasons

Standards obligations?

Did the landlord fail to maintain the premises and comply with the HHS?

Did the landlord fail to provide healthy drinking water?

Did the landlord unlawfully enter the premises?

Should the term of the tenancy be reduced?

Should the tenants pay rent arrears?

Should the tenants pay for damage to the premises?