What was Tenancy Tribunal case 4544032 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,150.00 ([Bond number suppressed])

How much money was awarded in case 4544032?

Compensation: Loss Of Amenity: $6,200.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Until The End Of The Tenancy On 7 Oc…: $14,350.00 awarded to landlord

What type of tenancy dispute was case 4544032?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4544032?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10281345-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4544032 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,150.00 ([Bond number suppressed])

How much money was awarded in case 4544032?

Compensation: Loss Of Amenity: $6,200.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Until The End Of The Tenancy On 7 Oc…: $14,350.00 awarded to landlord

What type of tenancy dispute was case 4544032?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4544032?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10281345-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4544032 — State of repair

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4544032 — net $1,150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
until the end of the tenancy on 7 October 2023	$14,350.00		until the end of the tenancy on 7 October 2023
Compensation: Loss of amenity		$6,200.00	Loss of amenity
Exemplary damages: Failure to maintain		$5,000.00	Failure to maintain
Exemplary damages: Failture to comply with Healthy		$2,000.00	Failture to comply with Healthy
Total award	$14,350.00	$13,200.00
Net award	$1,150.00
Total payable by Tenant to Landlord	$1,150.00

The Bond Centre is to pay the bond of $1,150.00 ([Bond number suppressed]) to Juan Li immediately. The Bond Centre is to pay the bond of $1,450.00 ([Bond number suppressed]) to [The tenant/s] immediately.

The bond is apportioned on the basis of the following awards of compensation and exemplary damages:

Reasons

Both parties attended the hearing. A Mandarin interpreter was present for the landlord. The landlord was assisted by Mr Dai who is an experienced property manager.

This claim concerns the rental of a two bedroom house in Huia. The tenancy began on 24 September 2021. The property has two bedrooms upstairs and a rumpus/bedroom downstairs.

The tenant filed a claim on 16 May 2023 seeking compensation for loss of amenity and exemplary damages for failing to maintain the property in a reasonable state of repair and for breaching the Healthy Homes standards.

The landlord then filed a claim on 18 July 2023 seeking termination of the tenancy, rent arrears and the bond. Onus of proof and evidence

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil standards and expectations. This means that it is for the party bringing the application to establish their claims on the balance of probabilities. That means that they must establish that what they are claiming is more likely than not. This is referred to as the ‘burden of proof’.

Normally independent witnesses, corroborating documents, reports and photographs are an important part of meeting this burden.

In adjudicating this matter I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim I must consider all of the evidence presented (including oral evidence during the hearing). I must weight this evidence to decide what is more likely.

Ultimately if either party does not provide sufficient evidence to support their claim it must be dismissed.

For the sake of brevity I have not referred to all of the evidence filed and given at the hearing but the parties can be assured that I have carefully considered all of the evidence in reaching my decision. The landlord’s claims

The tenancy finished before these matters could be heard and so there was no need to consider the issue of termination. The landlord’s remaining claims are for rent arrears and the bond.

The landlord provided a rent summary which showing that tenant owed rent in the amount of $18,771.43.

The tenant claimed that the rent summary had missed some payments and that the landlord had agreed that rent would be reduced initially to $600 per week and then to $400 due to issues with the property and the need for repairs.

I was grateful for the assistance of Mr Dai who spent some time with the tenant during the morning adjournment carefully comparing the landlord’s rent summary with the tenant’s bank accounts statements. It was discovered during this exercise that the landlord had missed recording a payment of $400 made by the tenant. In addition, I find that the tenancy in fact ended on 7 October 2023. At that time the arrears as recorded by the landlord totalled $16,450 and so on that basis the rent owed, according to the landlord, was $16,050.00.

There were discussions between the parties as to reduced rent. The discussions on this issue took place in person, by text message and by email was very confusing and difficult to follow. It is clear that there were discussions about reducing the rent to $400 per week but I am not satisfied on the evidence before me that this was ultimately agreed. There was however clear agreement that the rent would be reduced to $600 per week from 12 February 2023.

I find it proved that the landlord agreed to reduce the rent to $600 from 12 February 2023 until the end of the tenancy and so the rent should be reduced by this amount ($50 per week for a period of 34 weeks, totalling $1700). On that basis the rent arrears total is $14,350. The tenant’s claims

The tenant initially sought work orders (although the tenancy has now ended so none are required) and claimed that the landlord failed to: a. Provide and maintain the premises in a reasonable state of repair; and b. Comply with the Healthy Homes Standards.

The tenant says that she moved to the property with her young daughter in September 2021 during spring. She said that the issues with the property only became apparent during the first winter during 2022.

The tenant explained that she became concerned about leaks that had appeared in every room in the house, problems with the gutters, mould downstairs and a leak in the shower behind the toilet wall. She raised these issues with the property manager (at this stage Barfoot & Thompson were acting) and by October 2022 she wrote to them setting out her concerns.

The tenant said that a builder was sent to investigate but no work was done and so she moved her daughter into her room as everything in her daughter’s room became damp covered in mould. At the hearing the tenant produced photos of numerous items (including paintings that had important sentimental value) that had been destroyed by mould.

The tenant explained that no repairs were done and that just before Christmas the property manager explained that they were unable to continue to represent the owner as the property did not meet the Healthy Homes Standards and that owner was not willing to do any repairs.

At the hearing the tenant produced photos taken during the tenancy. These photos show leaks, together with mould on ceilings, walls and window frames and covering the tenant’s personal items. Photographs of the carpet taken up downstairs show obvious damp/wet patches with yellow and grey mould, and when pulled back show soaked flooring underneath.

The photos of the outside of the property show a deck over the downstairs room which appears to have broken and/or blocked guttering, with water flowing down the side or the outside walls.

On 1 May 2023 the landlord wrote to the tenant stating: “I acknowledge your concerns regarding the property’s maintenance and repair issues. I apologize for any inconvenience caused. Following discussions with several professional builders, we have come to the conclusion that your current rental property is no longer suitable for human habitation due to the ongoing issues your have experienced with water leaks in the rooms downstairs. I take your health and safety very seriously and believe that it is in your best interests to terminate the tenancy agreement. In accordance with the Residential Tenancies Act 1986, specifically Section 59 which covers the destruction of premises, I am issuing you with a notice to terminate the tenancy. You are required to vacate the property within 7 days of receiving this notice”

The tenant set about finding a new tenancy and left on 7 October 2023. The landlord argued that the tenant left items at the tenancy until some weeks later but I find that the tenancy ended on 7 October 2023 when the tenant vacated. The landlord’s response

The landlord said that the property is fairly old and in the Huia bush. She said that she did her best to maintain the property but that she has mortgage payments to meet. She said that the tenant was often difficult and when she did arrange for tradespeople to visit and that she did not want them there when she was not in the house. In response the tenant said that the landlord only seemed to want to do repairs once she had been given notice, and she was reluctant to be subjected to the inconvenience of work being done on the property when she was moving out. Discussion and findings

Section 45 of the Residential Tenancies Act 1986 (“RTA”) provides that a landlord must 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.

Breaching this obligation 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.

I appreciate that this was a home set in the bush in Huia, and so is likely to be less sunny than homes in other positions. However the tenant has provided photos which clearly show that the property was not in a reasonable state of repair. The tenant brought these issues to the landlord in September/October 2022 but they were not rectified.

The landlord herself appears to have appreciated that matters had reached a critical stage as by May 2023 she had reached the view that the property was uninhabitable to such a degree that she terminated the tenancy on only 7 days notice.

In my view the tenant is entitled to some compensation for loss of amenity. I have taken into account that the rent was reduced by $50 per week for the last 37 weeks of the tenancy but in my view the loss of amenity was such that one bedroom was completely unusable and the rest of the house was mouldy and damp.

It is often difficult to come to a precise calculation in determining compensation for loss of amenity. There were clearly problems from approximately July/August 2022. By February 2023 the landlord had agreed to reduce the rent, although in my view it should have been reduced much further.

It is often difficult to calculate compensation for lack of amenity with any precision. Where there is leaking and mould the tenant will be affected more during winter and less in summer. In this case the tenant has not been able to use one of the rooms for much of the tenancy, has experienced higher than usual power bills due to running a dehumidifier and has had some possessions destroyed by mould.

I consider that compensation of $100 per week is warranted from the middle of the first winter in 2022 until the entire tenancy (a total period of 62 weeks and a sum of $6,200), to compensate the tenant for loss of amenity. I appreciate that the loss of amenity increased over the tenancy and was greater in winter than summer. The overall sum is intended to reflect the loss of amenity, on average, across that entire period of the tenancy.

Should exemplary damages be awarded for failure to maintain?

The landlord has breached their maintenance obligations. I find they have committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

I find that the breach was intentional as the landlord was advised of the maintenance issues and failed to act.

It was clear at the hearing that the landlord was concerned about her own financial position and meeting her mortgage obligations. Ultimately however, if a person decides to be in business as a landlord, they need to ensure that they have sufficient funds available to meet their obligations under the law.

The impact on the tenant has been severe. She had thought that she had found a permanent and safe home for her and her daughter, only to discover that it was ultimately unliveable, to the detriment of their happiness and health. Many of their possessions have had to be thrown away.

There is a strong public interest in ensuring that rental properties are properly maintained. Tenants should not be expected to live in damp and mouldy conditions.

Taking into account all of the above factors, I award exemplary damages in the amount of $5,000.

Did the landlord breach the healthy homes obligations?

[The tenant/s] claims that the landlord has breached 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).

Breaching this obligation 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.

Compliance dates for the HHS vary depending on the tenancy. 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 2025.

This tenancy began on 21 September 2021, so the property was required to comply by 20 December 2021.

The tenant says that after raising maintenance issues with Barfoot & Thompson she received an email from Barfoot & Thompson on 22 November 2022 attaching a Healthy Homes Report dated 24 September 2021 showing that the property failed the following standards: a. Heating (needs 2.4kw panel heater) b. Ventilation (needs extractor fan in bathroom 2) c. Draught Stopping (needs window baps fixed)

The Healthy Homes Report also recorded that more smoke alarms were required and that there were gaps around the external door joinery.

At the hearing the landlord produced an invoice from P Electrical for the installation of a 2.4kw panel heater on 22 November 2022, upgraded fuses at the switchboard and door sealing.

The landlord produced another Healthy Homes Report which oddly was identical to the first report and even bore the same date, but showed that the home complied. The landlord explained that the person who had done the report had done the work and so had re-done the report without needing to do a further inspection and not given the report a new date.

I queried the landlord as to how the property could now comply when not all the work in the initial report had been done, but the landlord insisted that the property now complied.

Whatever the current situation, I have no difficulty finding that the property did not comply between the required compliance date of 20 December 2021 and the date that the Healthy Homes compliance work was done, in November 2022.

The landlord has breached their obligations to comply with the Healthy Homes Standards. I find they have committed an unlawful act.

The landlord received a Healthy Homes Report on 21 September 2021 showing that the property did not comply, but waited over a year to do any of the required work. The breach was intentional.

The effect of these breaches has not been as severe on the tenant as the maintenance issues but they have contributed to the property being an unhealthy place to live. The fact that the smoke alarms were not compliant is concerning as these are important for safety.

The Healthy Homes Standards are now well known. It is in the public interest to ensure that all landlord’s comply.

I consider that exemplary damages are warranted, but towards the lower end of the scale. I order exemplary damages in the amount of $2,000. Filing fee and name suppression

Each party has had some success and so I have not returned the filing fee.

I have given some careful consideration to name suppression. While there has been a very large award of arrears to the landlord, I consider that the tenant has been the more successful party and so have awarded name suppression to the tenant pursuant to Section 95A RTA.

Order

Claims and awards in Tenancy Tribunal application 4544032 — net $1,150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
until the end of the tenancy on 7 October 2023	$14,350.00		until the end of the tenancy on 7 October 2023
Compensation: Loss of amenity		$6,200.00	Loss of amenity
Exemplary damages: Failure to maintain		$5,000.00	Failure to maintain
Exemplary damages: Failture to comply with Healthy		$2,000.00	Failture to comply with Healthy
Total award	$14,350.00	$13,200.00
Net award	$1,150.00
Total payable by Tenant to Landlord	$1,150.00