What was Tenancy Tribunal case 4546671 about?

The tribunal order states: [The tenants’] names and identifying details, including the tenancy address

How much money was awarded in case 4546671?

Compensation: $3,514.29 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4546671?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4546671?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9402030-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4546671 about?

The tribunal order states: [The tenants’] names and identifying details, including the tenancy address

How much money was awarded in case 4546671?

Compensation: $3,514.29 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4546671?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4546671?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9402030-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4546671 — Healthy homes

Claims and awards in Tenancy Tribunal application 4546671. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for breach HHS 9/01/2023 – 11/09/2023 Tenant	$3,514.29		Compensation for breach HHS 9/01/2023 – 11/09/2023 Tenant
Filing fee reimbursement	$20.44		Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4546671. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for breach HHS 9/01/2023 – 11/09/2023 Tenant	$3,514.29		Compensation for breach HHS 9/01/2023 – 11/09/2023 Tenant
Filing fee reimbursement	$20.44		Filing fee reimbursement

Order

[The tenants’] names and identifying details, including the tenancy address must not be published.
The landlord must carry out works to ensure the premises comply fully with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS regs). The work must be completed by 2 November 2023, and must include work to comply with: a. The heating standards set out under subpart 2 of the HHS regs. b. The insulation standards set out under subpart 3 of the HHS regs. c. The moisture ingress and drainage standards set out under subpart 6 of the HHS regs.
Excel Property Management Ltd as agent for Jingping Sun must immediately pay [the tenants] $3,534.73 immediately, calculated as set out in the table below:
The maximum rent the tenant must pay until the work described in Order 2 is completed is $750.00 per week.

Reasons

One tenant attended. He was not originally named as a party. I add him as a party because the tenancy agreement records him as a tenant. He represented his wife (who was the originally named applicant) at hearing and was assisted by Kevin Sun, a Mandarin interpreter.
Joy Wang, a property manager for Excel Property Management Limited (“Excel”) attended for the landlord.
The tenant claims that the premises do not comply with the Healthy Homes Standards and have not been maintained to a reasonable standard of repair. By way of remedy, he seeks work orders, compensation, and exemplary damages. Background and issues for determination
The tenancy began on 12 September 2022. The house is a large, perhaps 1950s-built, multi-storied bungalow style, weatherboard, brick, and steel roof building on a large section of about 800m 2 . It has five bedrooms and several bathrooms.
The house itself appears solid from the photographs I have seen. However, the house is dated and has not been fully maintained or upgraded to comply with the Healthy Homes Standards.
The current owner purchased the property in 2021 with a view to developing the site by demolishing the house and replacing it with six modern units. That plan has not eventuated, and the owner decided to rent the premises out and engaged Excel as his agent for that purpose.
The tenants visited an open home for the premises in August 2022 and were aware that the property was in poor condition: 1 A that time, what I saw was that the carpet was dilapidated, the deck was severely decayed, large areas of paint on the exterior walls of the doors and windows fell off, there was no heating facilities in the sludge, the doors and windows were leaking everywhere, the roof was leaking rain, the curtains were moldy and rotting, aging, and no longer usable.
Ms Wang advertised the premises for rent, and she entered into a tenancy agreement with the tenants in August of 2022. The written version of the tenancy agreement states that the premises are exempt from complying with the Healthy Homes Standards because: 1 The tenant’s written submission, handed up at the hearing. The landlord intends to demolish or substantially rebuild the rental property and has applied for or has been granted the relevant resource or building consent. 2
That statement was inaccurate. In fact the owner never applied for a resource consent or a building consent. The owner got some plans and drawings made. However, the owner’s intended developed struck problems with the Environment Protection Authority due to issues with underground pipes.
Among other things the agreement also indicated that the entire premises’ underfloor insulation was “in a reasonable condition”. The agreement also recorded by way of a special term: Tenants ask to extend the Healthy Homes Standards exemption period from 12 months to 18 months and agree to not raise Healthy Homes Standards compliance issues within the 18 months period.
The tenant was aware that the premises was not in substandard condition in some respects. Therefore, he agreed to the tenancy with a weekly rent set at a level that corresponded to the house’s condition. However, after the tenants moved in, they found the premises even worse than anticipated. The tenants write: 3 In desperation, I found the house a house inspection company and made a legal report. The result surprised us. The house inspection report said the condition of the of the house did not meet the conditions for renting at all, which seriously violated the lease regulations and seriously infringed on the interests of the lessees.
The tenants’ inspection company, A Buyer’s Choice Home Inspections’ report confirms that the property does not comply with the Healthy Homes Standards for heating, insulation, or moisture ingress and drainage.
The Tribunal must decide: a. Whether the landlord is in breach of its obligations under s 45(1) of the

Residential Tenancies?

b. If so, what compensation and/or exemplary damages should be awarded to the tenants, if any? c. And what work orders should be made? 2 In fact, the exemption does not apply because although the landlord intended to demolish the house, he had not applied for a resource or building consent. 3 See n 1.

Is the landlord in breach of its obligations under s 45(1) of the RTA? Legal principles

Under s 45 of the RTA, landlords must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, and comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Parties cannot contract out of their obligations under the RTA without the Tribunal’s permission. Section 11 of the RTA provides: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless - (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2)... (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect. Discussion
The tenants’ HHS report shows that the premises does not comply with the heating, insulation, or moisture ingress and drainage standards.
The tenancy agreement erroneously claims that the HHS are disapplied from the tenancy due to the owner having applied for a resource consent or building consent. In fact, the HHS were not disapplied and the compliance date for compliance with the HHS standards was the 120th day after the date the tenancy began, which was 12 September 2022. 4 The date for compliance was therefore, 9 January 2023. 4 See Schedule 1 Part 1 2(2)(c) of the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The parties agreed between themselves that the HHS would not apply to the tenancy. That agreement is of no effect unless the Tribunal permits it under s 11 of the RTA.
I have regard to the nature of the tenancy, the provisions of the tenancy agreement, and the interests of the parties. The tenancy is an ordinary residential tenancy, and the tenants are a family with children. The owners intended development of the property is stalled. Ms Wang says in fact the owner now wants to upgrade the house, so it complies with the RTA. Therefore, there is no need to permit the term seeking disapply the landlord’s HHS obligations and nor is it likely the Tribunal would have permitted it any event.
Therefore, the term is not permitted. Conclusion
I find that the landlord is in breach of its obligations under s 45(1) of the RTA. The landlord did not ensure the premises complied with the HHS.

What compensation and/or exemplary damages should the Tribunal order?

The tenants say that their daughter’s bedroom was uninhabitable. She had to sleep in the study, which was too small for her bed. The temperature in the tenants’ bedroom was as low as 11 degrees Celsius in Winter and up to 30 degrees in Summer. There were multiple leaks and other deficiencies which together were much worse than the tenants had been prepared for.
The tenants should be compensated for lack of amenity in the premises. In all the circumstances, including that the rent was set lower than it would have otherwise been due to the condition of the house, I quantify the loss of amenity at $100.00 from the date the premises should have complied with the HHS, which is 9 January 2023.
By breaching s 45(1) the landlord 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.
After carefully considering the matter, I am not satisfied the landlord’s breach was intentional. Ms Wang says she sincerely believed the owner had applied for a resource consent. It was only after these proceedings were brought that she discovered that the landlord had only applied to the Environmental Protection Authority and not Auckland Council for a consent.
Therefore, the Tribunal does not have the power to award exemplary damages.

What work orders should the Tribunal make?

When the Tribunal finds that the landlord has failed to comply with its s 45(1) obligations, it may make an order for the landlord to carry out work to remediate the breach. 5
In this case, the work orders above are being made by consent of both parties.
The rent is to continue to abate. The rent must remain at $750.00 per week until the property fully complies with the HHS. Application fee
The tenants having substantially succeeded with their claim, the landlord must pay their filing fee. Non-publication
The tenants request non-publication of their identifying details.
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.
The tenants have substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenants’ conduct or any other circumstances of the case.
The tenants identifying details including the premises’ address must not be published. R Kee 5 See section 78(1)(e) Residential Tenancies Act 1986. 11 September 2023

Tenancy Tribunal case 4546671 — Healthy homes

At a glance

Tenancy Tribunal case 4546671 — Healthy homes

At a glance

Claims & awards

Order

Reasons

Residential Tenancies?

What compensation and/or exemplary damages should the Tribunal order?

What work orders should the Tribunal make?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Residential Tenancies?

What compensation and/or exemplary damages should the Tribunal order?

What work orders should the Tribunal make?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions