What was Tenancy Tribunal case 4546682 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 4546682?

Compensation: $5,759.00 awarded to tenant; Compensation: $1,000.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4546682?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4546682?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9325851-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4546682 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 4546682?

Compensation: $5,759.00 awarded to tenant; Compensation: $1,000.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4546682?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4546682?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9325851-Tribunal_Order_Redacted.pdf.

50 Waingake Road, Manutuke, Manutuke 4072 Tenancy Tribunal Case 4546682 — State of repair

Claims and awards in Tenancy Tribunal application 4546682 — net $7,759.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – items and maintenance services	$5,759.00	Compensation – items and maintenance services
Compensation – rent rebate – loss of amenities	$1,000.00	Compensation – rent rebate – loss of amenities
Exemplary damages – failure to maintain	$1,500.00	Exemplary damages – failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,759.44
Total payable by Landlord to Tenant	$7,759.44

Claims and awards in Tenancy Tribunal application 4546682 — net $7,759.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – items and maintenance services	$5,759.00	Compensation – items and maintenance services
Compensation – rent rebate – loss of amenities	$1,000.00	Compensation – rent rebate – loss of amenities
Exemplary damages – failure to maintain	$1,500.00	Exemplary damages – failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,759.44
Total payable by Landlord to Tenant	$7,759.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and the landlord’s names and identifying details.
[The landlord/s] must pay [The tenant/s] $7,759.44 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $520.00 ([Bond number suppressed]) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

[The tenant/s], attended the hearing. [The landlord/s], also attended the hearing, along with a support person, [The landlord’s support person].
The tenant has applied for failure to maintain, breach of Healthy Homes Standards in relation to draughts, hearing, moisture and drainage, breach of smoke alarm regulations, exemplary damages, compensation/damages, refund of the bond and reimbursement of the filing fee.
Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. Further, the evidence should be reasonable with no probable defects, such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence.
[The tenant/s] lived in a cottage owned by [The landlord/s], moving in there with her partner and child in early November 2014. [The tenant/s] and her family lived in the cottage until early July 2022. There was no renewal of this periodic tenancy, no variation to the tenancy terms and no new tenancy over this period. The property included the use of three bedrooms, a garden, driveway, laundry, and shower room. There was an ‘outhouse’ with a toilet at the house also.
Rent at the cottage was initially $260.00/week for the first few years. Rent increased to $350.00/week effective 6 May 2019, and then increased again to $450.00/week effective 4 July 2022. Failure to maintain
Over the period of the tenancy, [The tenant/s] said there were problems with the septic tank which caused and contributed to drainage problems on the property and led to sewage discharges outside the property. She maintained there were also issues with the driveway, which included it becoming inaccessible due to flooding, overhanging trees and a lack of gravel to fill holes in the driveway. She said further that there was a leak in the kitchen ceiling, faulty spouting and rotting sills in the bathroom and bedrooms.
[The tenant/s] said that she had brought these issues to the attention of [The landlord/s], that [The landlord/s] had been responsive initially, as she agreed to have plumbers come out and clean out the septic tank, but that, as the problems worsened, there was a lack of action on [The landlord/s] part to resolve the issues properly, including replacing the septic tank, putting gravel in the driveways or trimming overhanging trees in the driveway or by the house. [The landlord/s] disputed this and said she had been proactive in arranging for tradespeople to attend the property to carry out repairs when she had been informed about any issues.
[The tenant/s] claimed that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness, 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 any relevant enactment in relation to buildings, health and safety.
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 (“RTA”). Sewage
[The tenant/s] said the issues with the septic tank began around 2015, when the stench from problems with the septic tank became noticeable. With the landlord’s consent, [The tenant/s] arranged for [redacted] to attend and clean the septic tank. She said she was told by [redacted] who cleaned the tank, that the tank would need replacing and that he had told the landlord this. He gave them some [Drain de-clogger]. [The tenant/s] said after that, every few months water would bubble over the top outside the kitchen window and there was a strong smell. She said she and her partner would use hose wire, [Drain de- clogger, kettles of hot water regularly to try to deal with the issue. [The tenant/s] said that plumbers attended the property about 6 times over the period of her tenancy to clean out the septic tank. In between, she and her partner were frequently also troubleshooting the problem on their own. She said the ground was mushy, so they put a piece of wood on top of the septic tank. [The tenant/s] said they had several conversations with [The landlord/s] from 2019 to 2022 about her needing to replace the septic tank. The tank had to be emptied frequently later in the tenancy, she said. [The tenant/s] said their visitors would comment on the smell of faeces at the property. The stench was so bad that during the Christmas 2021 period, their guests could not put tents outside to camp. Also, the plumber could not get into the property to clean the septic tank at that time, as he could not get down their driveway due to the overhanging trees.
[The tenant/s] said around 9 August 2019, there was a big pile of sewage which overflowed from the drain all over their driveway. Photographs were provided of this, where the flow of sewage had obviously been extensive. She said there had also been sewage flowing from the outside pipes of the outside toilet. [The tenant/s] said there was frequently bubbling fluid that would come up, then subside, leaving a green mark. She said this happened in increasing frequency for the last year or two of their tenancy.
[The tenant/s] said that when she would tell [The landlord/s] about the septic overflowing again, [The landlord/s] would frequently ask [The tenant/s] to make the arrangements to get a plumber to the property. [The tenant/s] did not think it was her job to arrange this. [The landlord/s] said she only asked [The tenant/s] to do this as she thought it would be easier for her to arrange a convenient time when she would be at home for the plumber.
[The landlord/s] acknowledged that the septic tank was a major problem but said the constant heavy rain at the time also did not help. She said she got the septic tank cleaned regularly and was told it should not need emptying but then it did.
[The landlord/s] said she finally found a professional who was direct with her and told her a new septic tank would be required and so she started the process for this in June 2022. She maintained she had a building consent from the Gisborne District Council for this. The document provided to confirm this indicated [The landlord/s] own address on it, not the tenancy address, but she explained this involved joining an already existing newer septic tank elsewhere on her property to a new one on the tenancy property and that is why her address was on the Council consent. [The landlord/s] said she estimated the septic tank at the tenancy property was around 30-40 years old but said the health of such tanks can depend on what you put down the drains, and that fat and grease are not recommended for septic tanks. She questioned whether the tenants had been putting fat and grease down the drains and how many people were living at their property. [The tenant/s] said it was not their practice to put fat or grease down the drains.
There was still not a new septic tank at the property as at the hearing date. However, [The landlord/s] said she is hopeful a new septic tank will be installed at the property around September 2023. Drainage
[The tenant/s] said that the drain under the kitchen window would often overflow and flood their drive, as it was getting blocked by the septic. This was especially so if they were using the washing machine or shower, she said. She provided photographs of the saturated and muddy ground around the septic and garden. [The tenant/s] said this got worse in the last 12 months of their tenancy. She said they tried to discuss this with [The landlord/s] and provided copies of texts between the parties confirming the issues with the drains, septic tank and pipes, making arrangements for plumbers to come and clean out the septic tank. One text from the tenant to the landlord in 2021 commented that the plumber had told her the septic tank needed replacing, to which the landlord replied, “Don’t want to have to replace it as now have to put in those stupid aeration things which are a nightmare. Be best just to get it emptied once a year.”
[The tenant/s] said that her partner would regularly clean the spouting and that there were parts of the spouting that were old and needed fixing. She said the spouting was not maintained by the landlord.
[The landlord/s] confirmed that there had been no discussion between the parties at the start of the tenancy as to who was responsible for the exterior maintenance at the property. She assumed the tenants would do this. [The tenant/s] said that they did a lot of maintenance at the property because they felt they had to but expected [The landlord/s] to arrange for bigger repairs.
There were several maintenance issues alleged by [The tenant/s]– including repairs to the fireplace door -which [The tenant/s] acknowledged [The landlord/s] was not notified about. Nor did [The tenant/s] inform [The landlord/s] about her lack of access to some amenities at the property, which is dealt with in more detail below.
[The tenant/s] said that, along with the septic tank problems, the other major issue they experienced at the property was with the driveway. She said the last couple of years of the tenancy was particularly hard for them, as there was constant flooding in their drive by the house, around the gate by the house and about ¾ of the way down the driveway back to the main road, where there was another gate. She said this driveway was not sealed and had paddocks either side. In the rain, and with holes in the driveway, she said that often the vehicles of she and her partner would have to straddle the side of the driveway onto paddock grass. She said they asked [The landlord/s] for gravel for the holes in the driveway, for the area around the gate by the house, and for the area from their door to their vehicles. They only received gravel from [The landlord/s] for the area around the gate by the house.
Adding to the problems with the driveway, [The tenant/s] said there were overhanging walnut trees on the driveway owned by neighbours, which made them veer from the driveway onto the paddock, impacting their ability to drive safely up the driveway. She said they asked [The landlord/s] to trim these trees but this was not done until sometime between May and July 2022. [The tenant/s] said their visitors, including her mother, would frequently park on the main road and then walk up to their property, as they found the driveway too difficult to navigate. [The tenant/s], who was experiencing some health issues during the tenancy, said she was particularly worried that any emergency vehicles that might be needed would not be able to get up the driveway to the house. [The tenant/s] said the driveway situation was bad and worsened over the last couple of years of their tenancy. She said it would have made it much easier if it had been gravelled more.
[The tenant/s] said further that there was a lot of bamboo in the drive by the house which was overgrown, which affected their ability to come and go in the drive. She asked for this to also be trimmed but this was not done until close to the end of the tenancy.
[The landlord/s] said it was a farm cottage and the track is over a paddock. In extreme weather, such as had been the case for the last couple of years, navigating the driveway was going to be difficult. She commented that the tenants appeared to have plenty of vehicles coming and going. She said that metal on the driveway just disappears in extreme wet weather in any event, but that she had provided gravel for the area around the gate by the house. She said the trees were trimmed in mid-June 2022.
[The tenant/s] said the first leak from the ceiling about the kitchen window was about 2017, there was a partial repair completed by a friend of [The landlord/s] who apparently didn’t return to complete the repair. When [The tenant/s] again experienced a big leak there in February 2022 and messaged [The landlord/s] about it, she said she did not get a reply.
From the evidence outlined above, particularly about the level of problems with the septic tank, including ongoing sewage discharge and stench, the inaccessibility of the property’s driveways, as well as the time over which the issues were not dealt with by the landlord with any satisfactory resolution, I find it more likely than not that the landlord failed to maintain the property sufficiently during the tenancy.
Given the finding of failure to maintain, the landlord has 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) RTA.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. Here, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
I find in this situation that the landlord acted intentionally, in acting the way they did and allowing the situation to continue over time, without acting to properly repair the problems, despite being advised of them.
I have dealt with the landlord’s intent above. The effect of this unlawful act on the tenant has been that she and her family had much stress in having to constantly deal with overflowing water, sewage, lack of access by them and their family and friends via the driveway to the property, to the driveway around the house, and having to arrange for repairs frequently over the tenancy period. [The tenant/s] said her daughter was often sick whilst living at the cottage and is now noticeably healthier in a new living environment. [The tenant/s] said once she sent [The landlord/s] a 14-day notice to remedy, she then received a 90-day notice to vacate the property from [The landlord/s], due to renovations and repairs. Whilst she did not claim retaliatory notice, she commented on how others moved into the tenancy property shortly after she left, which she found upsetting. [The tenant/s] explained how hard it was for her to move out of the property as she had loved its location and was forced to put some of her dogs down as she did not have facilities for them in town.
In my view, it is in the public interest that exemplary damages be awarded to deter other landlords from not adequately maintaining tenancy properties.
The maximum level of exemplary damages is $7,200.00. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. The landlord made increased efforts to rectify the issues later in the tenancy, as outlined above. She said that consent has been granted for a new septic tank on the property and other steps have been taken to maintain and repair the property. Exemplary damages are punitive and not designed to compensate the tenant. Given that the landlord has taken steps to rectify the issues at the property, including arranging for a new septic tank to be installed, I consider an order for a nominal amount of $1,500.00 in exemplary damages would be indicated. I therefore order exemplary damages of $1,500.00 for the landlord failing to maintain the property. Healthy Homes Standards
[The tenant/s] claimed that the landlord has breached the landlord’s obligations under section 45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS standards relating to draughts, heating, moisture and drainage.
Compliance dates for the HHS vary depending on the tenancy. This tenancy began in 2014 and has continued uninterrupted from then until July 2022. There was no renewal or variation of the tenancy, nor was a new tenancy entered over that time. Therefore, the compliance date for the landlord to comply with HHS standards for this tenancy (except insulation which has different compliance dates) is 1 July 2025 and so does not apply to this tenancy. Therefore, the tenant’s claims that the landlord breached Healthy Homes Standards must be dismissed. Smoke alarm regulations
[The tenant/s] claimed that [The landlord/s] breached smoke alarm regulations. She said that when she moved into the property, there were no smoke alarms and that she installed her own smoke alarms at the property almost immediately after moving in. She moved into the property in 2014. She acknowledged that she did not tell [The landlord/s] that there were not smoke alarms at the property, nor did she ask [The landlord/s] to provide them. [The landlord/s] confirmed she had not been told this and that she did not become aware of this until later in the tenancy, when [The tenant/s] took down her own smoke alarms and [The landlord/s] then put some smoke alarms up.
Part 1 of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 came into force on 1 July 2016, which post-dated the start of this tenancy. Regulation 5(6) provides that there must be at least 1 qualifying smoke alarm installed in the sleeping space or otherwise at the premises within 3 metres of the entrance to the sleeping space. This applies to each storey of the building where there is a habitable space.
Given the start date for compliance with these Regulations post-dated the start of the tenancy in 2014, technically the landlord was not obligated to have smoke alarms in place then. As regards later in the tenancy, [The tenant/s] said she had not asked [The landlord/s] for a smoke alarm, nor had she alerted her to the fact there were not any in place at the start of the tenancy. As a result, I find there is insufficient evidence for [The tenant/s] to prove this claim. Therefore, this claim is dismissed. Compensation
[The tenant/s], during the hearing, amended her claim for compensation to $16,628.47 for removal of bamboo, replacement of a retractable hose reel, maintaining the bamboo to keep the gutters clear, maintaining the drains, general property maintenance such as water blasting, repairs to kitchen tapware and other issues, and replacing curtains and bedding due to mould. The amended amount claimed included [The tenant/s] claim for loss of amenities.
During the hearing, the parties reached agreement that [The landlord/s] is to pay [The tenant/s] $5,759.00 in compensation for all [The tenant/s] claims for items and property maintenance services provided by the tenant. Therefore, I do not need to go through the evidence in relation to that claim.
[The tenant/s] also claimed for loss of amenities during the tenancy due to the problems with the property. This included her being unable to access the driveway, being unable to access the house when the septic tank was overflowing or when raining, being unable to use the toilet or washing machine at times of overflow, being unable to use the lawns due to sewage overflow, being unable to use the clothesline, being unable to have visitors due to the driveway only being accessible by four-wheel drive vehicles. She was also concerned about the lack of accessibility to the property by emergency vehicles.
In particular, [The tenant/s] said there were several times she could not use the washing machine due to issues with the septic tank and waste overflow, it was difficult for she and her family to use the area from the house to the clothesline because it was always wet and would seep water, again due to the septic tank issues, there were restrictions in her family’s ability to use the driveway due to the lack of gravel, that their access to the house via the back door entrance was greatly limited due to the flooding, that their access to the house’s driveway was limited due to overgrowing bamboo and that visitors had to frequently park on the main road and walk up to the property because of the driveway issues.
[The tenant/s] said these issues could have been alleviated greatly by replacement of the septic tank, more gravel for the driveway close to the house, around the back entrance and on the main driveway, and with some maintenance of the bamboo around the house and of the trees overhanging the driveway. She believed that more could have been done to maintain the drains also.
[The landlord/s] acknowledged she had not supplied gravel for the area outside the back door out to vehicles but had supplied some gravel for around the house gate. She also said she had not provided gravel for the main driveway. She cited much heavy rain over this period as causing many of these issues and said she had not been made aware the situation was so bad.
[The tenant/s] said she may not have told [The landlord/s] about the extent of these restrictions but had messaged her about many of these issues over the tenancy.
[The tenant/s] claimed $1,000.00 per year for 5 years for a total of $5,000.00 for being unable to use these amenities. If a tenant proves it more likely than not that they have lost access to amenities they paid for during the tenancy, there can be a rebate of some of the rent paid by the tenant.
Based on the evidence outlined above, I find that [The tenant/s] has proved it more likely than not that she lost access to these amenities to the property during her tenancy. It appears that this loss of amenities became more pronounced during the last 2 years of the tenancy, from the evidence. However, there were certainly instances of issues impacting the tenant’s use of the property early in the tenancy also, if more sporadic then.
Rent was $450.00 per week in the later part of the tenancy, having increased from $260.00/week at the start of the tenancy, then to $350.00/week from May 2019. Any rebate of rent would be considered only for the portion of the property to which amenity was lost.
Here, given that the tenant had to endure these restrictions over at least the last 2 years of the tenancy, if not for longer, I find it reasonable for the landlord to rebate a nominal amount of the rent paid by [The tenant/s]. [The landlord/s] said she was largely unaware of the extent of these restrictions, which I consider when reaching a reasonable rebate figure. Given the extensive messages between the parties outlining all the issues and requesting repairs though, in my view, [The landlord/s] would likely have had a good idea that [The tenant/s] would have been experiencing some problems at the property due to the ongoing problems with the septic tank and accessing the driveway. The restricted access to the house driveway, the main driveway, outside the back door and to part of the garden to the clothesline, as well as at least three occasions of lack of access to the washing machine over the tenancy period, in my view merits a rebate approximating around 2-3 weeks rent. Therefore, in the circumstances, I find that it would be reasonable for [The landlord/s] to rebate the tenant $1,000.00 from the rent she paid, to compensate [The tenant/s] for her loss of amenities that were paid for by the rent. Refund of bond
Section 22B(2) Residential Tenancies Act 1986 (“RTA”) provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. [The landlord/s] did not file a counterclaim and said she did not object to the bond being refunded to [The tenant/s]. Therefore, the bond is refunded in full to the tenant. Filing Fee
Because [The tenant/s] has been successful with the claim I must reimburse the filing fee. Suppression
Both parties requested name suppression. As [The tenant/s] has been successful with the claim, she is entitled to name suppression as of right. Therefore, I order that the tenant’s name and identifying details are not to be published. See section 95A(1) RTA.
Section 95A(4) RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord claimed she was unaware of many of the issues at the property and of her legal obligations. There was some evidence that she responded to repair requests early in the tenancy proactively. There was also evidence that the landlord took steps to rectify the issues at the property later in the tenancy, just before the tenant left. The landlord said she has learned much from this claim and from dealing with the problems at the property. In the circumstances I find the landlord’s interests currently outweigh the public interest in publishing her name. Were there to be any further claims made against this landlord of a similar nature however, the public interest might then best be served by publication of her name. Therefore, I order that the landlord’s name and identifying details are not to be published.

Tenancy Tribunal case 4546682 — State of repair at 50 Waingake Road, Manutuke, Manutuke 4072

At a glance

Tenancy Tribunal case 4546682 — State of repair at 50 Waingake Road, Manutuke, Manutuke 4072

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions