What was Tenancy Tribunal case 4545469 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4545469?

Compensation: $500.00 awarded to tenant; Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4545469?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4545469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9424547-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4545469 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4545469?

Compensation: $500.00 awarded to tenant; Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4545469?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4545469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9424547-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4545469 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4545469 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$500.00	Compensation
Exemplary damages	$3,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Claims and awards in Tenancy Tribunal application 4545469 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$500.00	Compensation
Exemplary damages	$3,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $4,020.44 immediately, calculated as shown in table below:
All other claims are dismissed.
This order replaces the Tribunal order dated 12 May 2023.

Reasons

Both parties attended the hearing which was a rehearing of [The tenant/s]’s original applications, other than her claim to reduce the fixed term tenancy.
[The tenant/s] has claimed compensation and exemplary damages for various alleged breaches of the Residential Tenancies Act 1986 (RTA) by her landlord [The landlord/s]. The tenancy commenced in September 2022 when [The tenant/s] moved in to take over a friend’s fixed term lease. It ended by Tribunal Order on 15 May 2023 and the property was subsequently sold.
I traverse each concern of [The tenant/s]’s separately below. As much as is required I have discussed the parties’ evidence, and they can be assured that any that has not been directly referenced has still been considered in the forming of this decision.
As discussed at the hearing, in the Tenancy Tribunal, applicants are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. In this case, there is much evidence that is either contradictory or calls for the Tribunal to draw inferences. In that case the standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence. An initial discussion on the law
Section 45 of the RTA requires a landlord to provide and maintain a tenanted premise 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 and comply with any relevant enactment in relation to buildings, health and safety including the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
This home was required to be HHS compliant within 120 days of the commencement of the tenancy which was 4 January 2023. The relevant HHSs [The tenant/s] submits have not been met, are as follows: i. The ventilation standard which requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. ii. The moisture ingress and drainage standard which requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains.

What were the issues with the main bathroom?

[The tenant/s] says she was not able to use the main bathroom for the duration of the tenancy because there was no power to it, there was no fan, and she was told she could not use it. She says that at the change of tenancy meeting (initial meeting) before she moved in, [The landlord/s] told her not to use the bathroom at all until the rotted windowsill was repaired. She says she was told this after she had signed the agreement. She says [The landlord/s] was also told at the time by the previous tenant that the ventilation fans were not working in the bathrooms and kitchen.
[The tenant/s] says she used the bathroom occasionally to bath her children but could not use it in the dark given the lack of lighting. She claims compensation for this lack of amenity.
[The landlord/s] denies this. Her recollection is that she asked [The tenant/s] not to use the shower over the bath because the windowsill was rotting, and the shower water fell onto it. She also says [The tenant/s] said her father is a builder and so could fix the windowsill (along with the fence and gutters). She understood [The tenant/s] would use the rest of the bathroom and says she was not told about the fan not working until their meeting the following year on 24 March when [The tenant/s] indicated she wished to move out. As soon as she was aware, she had the fans and lights replaced. 1 She says the previous tenant only told her about the lights at the initial meeting and there was never any issue with power into the room.
[The tenant/s] says that when all the HHS issues were raised at the meeting on 24 March by her sister, [The landlord/s]’s response was that she could move out if she didn’t like it.
[The landlord/s] is adamant that she regularly asked [The tenant/s] if everything was ok and relied on her to report issues, as is her obligation. [The tenant/s] agrees that she did at times, such as the November inspection, say everything was ok, but that was because she was distracted at the time by her children and considers it a landlord responsibility to ensure the maintenance is complete on a home.
[The landlord/s] further challenges the veracity of [The tenant/s]’s evidence saying she has been untruthful during the tenancy. She also refers to the fact that the previous tenant is good friends with [The tenant/s] and arranged for her to move in; therefore the property cannot be as bad as [The tenant/s] alleges otherwise she would not have done this to her friend. She also says [The tenant/s] was very difficult to get hold of during the tenancy and did not communicate well.
Both parties have a different recollection of the discussion at the initial meeting. I prefer [The landlord/s]’s recollection of the discussion to an extent. I find it most likely that they did discuss not using the shower over the bath (there was another in the ensuite) but not that the whole room was not to be used. This is 1 Early May 2023 consistent with what she told the previous tenant. Accordingly, I do not accept the submission that [The tenant/s] was told not to use the bathroom at all.
I accept the evidence that the lights and fan were not working for the duration of the tenancy. The lights were raised by the previous tenant which is confirmed by her written statement which says that the lights and fan never worked during her tenure and she “let [The landlord/s] know this as we tried to replace the bulbs but it made no difference”.
On an assessment of the evidence, I find it more likely than not that [The landlord/s] was aware of the lights not working but was not specifically told that the fan was dysfunctional. She did not investigate or resolve the issue of the lights. I also find it likely that [The tenant/s] did reassure [The landlord/s] there were no issues at various times over the tenancy.
There are competing obligations here. Pursuant to s40(1)(d) of the RTA, tenants are obligated to advise a landlord of any need for repairs as soon as possible after discovery. On the flip side, pursuant to s45(1) of the RTA, landlords are obliged to provide properties in a reasonable state of repair and complying with the law, and then maintain them in that state during the tenancy.
A landlord’s obligation comes first as they provide the property in the first instance. Accordingly, [The landlord/s] was obliged to ensure the fan was working from the outset, but she did not. She did not check it and relied fully on the previous tenant to advise her of any issue. She does not have the luxury of this reliance as a defence, as it is her obligation, and hers only, to ensure her property is properly maintained at the commencement of a tenancy.
Accordingly, I consider that [The landlord/s] has breached s45(1) in failing to ensure the lights and fan worked in the provision of the tenancy. [The tenant/s] also failed in her obligation to advise [The landlord/s] of the issues as the tenancy went on. I discuss redress below.

What were the issues with the ensuite?

[The tenant/s] says the fan in the ensuite was not working and has provided a photo of the fitting with one light bulb 2 and the fan missing. Again, she says this was discussed at the initial meeting, so [The landlord/s] was aware from then that the fan was not working. She says this was the only fully functional bathroom and the mould growth was excessive because of the lack of a fan.
[The landlord/s] again says she was not told the fan was faulty until 24 March but agrees she did not check it at the initial meeting or the November inspection. As soon as she was aware she says, she replaced it. She is clear 2 There were 3 out of 4 in place that had she been told, she would have rectified it because not doing so would only cause her property damage.
The previous tenant’s statement says that this fan never worked for her either. The photos clearly show the fan and a bulb are not in the fitting, therefore it is obvious from a glance that the fan cannot be functional.
Having assessed the evidence, I find, as above, that [The landlord/s] was not told about the broken fan, but failed in her obligation to check it herself at the commencement of the tenancy. This is particularly surprising given the issue was visually obvious. [The tenant/s] also subsequently failed in her obligation to advise [The landlord/s], and this was especially important given mould was developing. I address redress below.

What were the issues with the kitchen?

[The tenant/s] says that the kitchen extractor fan was broken the duration of the tenancy and again [The landlord/s] had been told at the initial meeting. She says she was asked to sort it out to which she agreed to at the time, but did not get to it as she was pregnant and had two young children. [The tenant/s] says she could not cook regularly as the fumes were dangerous for her children, one of whom has serious lung issues.
[The landlord/s] says she was unaware the fan wasn’t working, just that a range hood was wanted. She says [The tenant/s] offered to obtain the range hood, so she left the issue with her. When she was told on 24 March that the fan was actually broken, she immediately purchased a range hood, but it could not be installed so she brought a replacement fan. Again, she says she was never told, otherwise she would have replaced it straight away.
The photos shows that the fan is clearly broken, even to the most casual glance. I therefore find it unlikely that [The landlord/s] did not know that it was dysfunctional, moreover it was her obligation to test it at the commencement of the tenancy to ensure she met her obligations pursuant to s45(1)(b) of the RTA. As discussed above it was also [The tenant/s]’s obligation to advise her of the issue.
I do not accept the evidence regarding the extent of the impact on [The tenant/s] as there is an outside door right next to the stove which could have been opened. Further, and importantly, she did not raise it specifically with [The landlord/s] until her sister did on 24 March, which indicates it did not bother her unduly.

Were there other areas the house was incompliant with the HHS?

Guttering

There was a section of guttering broken which [The landlord/s] was aware of from the commencement of the tenancy. [The landlord/s] recalls that [The tenant/s] offered her father to do the work, [The tenant/s] does not. [The landlord/s] says she chased it up at the November inspection and was told it was going to be done, [The tenant/s] denies this.
[The landlord/s] also does not consider that this caused an issue for [The tenant/s] as after heavy rain on one occasion she asked her if everything was ok, and [The tenant/s] reassured her it was.
The guttering was broken for the duration of the tenancy; this is a maintenance and HHS issue. I find it more likely than not that [The tenant/s] did offer up her father to undertake the work however [The landlord/s] should have chased the issue up to ensure she met the HHS within the required time frame. [The landlord/s] has breached her obligations here and I discuss this further below. Heat pump
[The tenant/s]’s evidence is that the outdoor shrouding on the copper pipes of the heat pump had deteriorated so they were exposed, which she has been told reduces the efficiency of the heat pump. It is also agreed that the heat pump malfunctioned in January but that was repaired after [The tenant/s] advised [The landlord/s] and arranged a repair person.
[The landlord/s] says that the heat pump had been serviced during the previous tenant’s tenure at which point the exposed piping was pointed out to her. She spoke with the trade about it who said it was nothing to worry about. She says that if it had been a problem, it would have been repaired when the trade was called in January to repair the unit.
I do not find it established in evidence that the heat pump was running less effectively than it could given the exposed piping. The evidence to that end is hearsay and not corroborated by any documentation or other evidence. I also find that [The landlord/s] complied with her obligations pursuant to s45 by having it repaired as soon as she was advised. [The tenant/s] offered to arrange the trade which suited her, and [The landlord/s] put no restrictions on that instruction, just that the heat pump should be repaired. Accordingly, I find no breach of the RTA here by [The landlord/s] and this claim is dismissed. Insulation
[The tenant/s] is of the view that the home cannot be lawfully insulated because it was so cold. [The landlord/s] says it was insulated in 2009 above the required specifications at the time and checked during the previous tenancy. The underfloor insulation has an R-value of 1.5 and the ceiling is 2.8, and there is a ground moisture barrier. She says the previous tenant told [The tenant/s] and herself at the initial meeting that she had had the insulation checked and it was fine. [The tenant/s] does not recall this discussion, but the previous tenant references an insulation check in her statement.
The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 require that 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.
The evidence does not substantiate the claim that the home is incompliantly insulated. Accordingly, this claim is dismissed. However, I do note that [The landlord/s] failed to provide the required information regarding the insulation in the tenancy agreement which is a breach of the RTA. Mould
[The tenant/s] says that there was excessive damp in the property from the lack of ventilation and broken windows that meant that mould grew quickly, particularly in one of the bedrooms. She says it was present from the beginning of the tenancy. She agrees she did not raise it with [The landlord/s].
[The tenant/s] has provided a letter from her doctor that says: ”We have been seeing this family regularly, more than average. They present with respiratory tract infections, especially with associated wheeze. This suggests a possible environmental impact on their presentations.” The letter is dated 1 August and gives no indication of the times [The tenant/s]’s family were seen (she moved out of the tenancy in April). Accordingly, I cannot place weight on this letter.
[The landlord/s] says she did see the mould but is sure it was because of the way [The tenant/s] had lived given she had never had issues with it before and she had rented out this house for many years. In support of this she provided a letter from a previous tenant confirming they never had issues with mould. She says she was only made aware of the broken window fittings at the hearing.
Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
Photos of mould in various rooms has been provided, however there is no evidence other than the lack of fans, a failure which is addressed elsewhere in this decision, that indicates that the home is inherently prone to mould. If [The tenant/s] was noticing mould growing, she was obliged to tell [The landlord/s], however she did not. Accordingly, I find no breach of s45 of the RTA by [The landlord/s] in this respect and dismiss the claim. Documents
It is agreed that the version of the tenancy agreement [The tenant/s] signed did not have the HHS or insurance sections completed. [The landlord/s] says this is because she was time poor, and [The tenant/s] was to sign it and send it back to her for her to complete. This is what happened although she mistakenly omitted to return the full agreement to [The tenant/s], however she was never asked for it.
[The landlord/s] says she wanted to do a HHS check at the beginning of the tenancy but the previous tenant advised her it had been done at the beginning of hers. Even if this is an accurate reflection of the situation, a landlord is not entitled to rely on such a statement by a previous tenant in an effort to meet their obligations. They are required to ensure that their homes are compliant; it is their obligation, and theirs alone.
Section 13(1CA) states that landlord must include information about the property’s HHS compliance in the tenancy agreement. This was not done. Further, [The landlord/s] breached s13 in failing to provide [The tenant/s] with the complete tenancy agreement.
I discuss redress below.

Did people come to the home without giving the required notice?

It is agreed that on the days [The landlord/s] was to come to the property, she gave notice of the day but not of the time. [The landlord/s] says this is because she was always travelling (she lives several hours away) and is never sure when she can actually leave work.
[The tenant/s] says there was an occasion when she was in the process of vacating (but was still paying rent) that [The landlord/s] came to the house and let herself in to drop something off rather than leaving it in the garage as she had asked her to. [The landlord/s] says she did not see the message about the garage until after she had been, and the sliding door was open (as it had been the day before for her) so she assumed it was again left open for her to drop the items off.
[The tenant/s] also says that on one occasion two real estate agents came to the house and told her [The landlord/s] had sent them and although she said it was not a good time, they came in and conducted their appraisal anyway. They had not given notice and did not respect that she was busy.
[The landlord/s] says she asked the agents to contact [The tenant/s] and arrange a time as this was the easiest given [The tenant/s] was hard to get hold of. She says she told them clearly to give the appropriate notice and because they did not on this occasion, she did not employ them to sell the house.
Section 48 of the RTA sets out the landlord’s obligations with respect to giving notice to attend a property. I find that [The landlord/s] has complied with her obligations in advising [The tenant/s] of the days she would be attending with sufficient notice. She is not required under the RTA to give notice of a specific time, despite that being best practice.
Regarding the agents’ attendance, [The tenant/s] was not obliged to allow them access and could have turned them away. They were real estate agents and accordingly can be deemed to have been aware of their obligations to provide notice and I accept [The landlord/s]’s evidence that she asked them to.
Accordingly, I find no breach of s 48 here by [The landlord/s] and dismiss this application.

Should compensation be awarded?

[The tenant/s] seeks $4,500 compensation for a lack of amenity 3 relating to the above issues. The evidence establishes that whilst she had use of the whole house, she had difficulty using various areas such as: i. The main bathroom had no fan and no lights. ii. The ensuite and only functional shower had no fan. iii. The kitchen had no extractor fan.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of 3 not having full use of what has been paid for. compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $500 compensation is reasonable in the circumstances. In coming to this figure, I take into account [The tenant/s]’s obligation pursuant to section 49 of the RTA to mitigate her loss by telling [The landlord/s] of the issues. As a matter of law, a tenant is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered. On the other side of that argument, I have considered that [The landlord/s] did or ought to have known of all of the issues from the outset.

Should exemplary damages be awarded?

As discussed above, [The landlord/s] has breached various provisions of the RTA, many of which are ‘unlawful acts’ as so defined by the RTA. 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 4 .
As [The landlord/s] is a seasoned landlord and well aware of her obligations, she is deemed to have acted intentionally. Accordingly, I consider an award of exemplary damages for all breaches I discuss below.
I find [The landlord/s] has breached the HHS ventilation standard in failing to ensure the property had compliant extractor fans in the bathrooms and kitchen within the statutorily required time frame.
I also find she has breached the drainage standard in failing to ensure the gutters were in adequate repair and functioning correctly.
I further find she breached her maintenance obligation in failing to ensure the lights worked in the main bathroom.
Breaching any of the obligations in s45 (maintenance and HHSs) 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 RTA.
Additionally, I find [The landlord/s] has breached s13 of the RTA in: a. Failing to provide the full tenancy agreement which included the HHS information. This is also an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00 5 . 4 See section 109(3) Residential Tenancies Act 1986. b. Failing to include a signed statement in the tenancy agreement that provides information on whether or not insulation is installed in any ceilings, walls and floors, and details of the location, type and condition of all insulation installed. This is also an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. 6 c. Failing to include HHS details in the tenancy agreement
In considering the factors of section 109, in relation to all the above-noted unlawful acts, I note the following: i. I am satisfied that [The landlord/s] was not deliberately evading her obligations but was mistakenly and negligently relying on her tenants to raise issues with her. ii. In saying that, [The landlord/s] is a veteran landlord and is aware of her responsibilities. Running a tenancy is a business and accordingly a landlord must ensure they have sufficient time and capabilities to run that business. A lack of time is not a defence in failing to meet obligations. iii. Requiring [The tenant/s] to sign an incomplete document is unprofessional and unlawful; essentially [The tenant/s] was committing to a situation that had not been adequately described to her. iv. [The tenant/s] has been impacted to varying extents by all of these breaches. She was a young mother of two young children and then a baby with health problems. She did not need a difficult tenancy on top of all that to deal with. v. Likewise, she failed in her obligation to advise [The landlord/s] of the issues she was facing until she wished to break the tenancy. vi. It is in the public interest that landlord provide warm and dry homes, provide information about the home before a tenant commits in writing to living there and attend to their maintenance obligations.
Having considered all of the above, and the circumstances of the tenancy as a whole, I find that an award of $3500 exemplary damages for all of the above breaches justified. This is at the lower end of the scale given the number of breaches because I am not aware of any previous, similar orders against [The landlord/s]. Filing fee 5 See section 13(4) and Schedule 1A Residential Tenancies Act 1986. 6 See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. [The tenant/s] was successful in a number of claims and [The landlord/s] was successful in a number of her defences. Accordingly, I approve both parties’ applications for suppression.

Tenancy Tribunal case 4545469 — Exemplary damages

At a glance

Tenancy Tribunal case 4545469 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What were the issues with the main bathroom?

What were the issues with the ensuite?

What were the issues with the kitchen?

Were there other areas the house was incompliant with the HHS?

Did people come to the home without giving the required notice?

Should compensation be awarded?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What were the issues with the main bathroom?

What were the issues with the ensuite?

What were the issues with the kitchen?

Were there other areas the house was incompliant with the HHS?

Did people come to the home without giving the required notice?

Should compensation be awarded?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions