What was the outcome of Tenancy Tribunal case 4551989?

The tribunal order states: must pay

How much money was awarded in case 4551989?

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 4551989?

The dispute type was not classified.

Where can I read the official tribunal order for case 4551989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10026828-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4551989?

The tribunal order states: must pay

How much money was awarded in case 4551989?

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 4551989?

The dispute type was not classified.

Where can I read the official tribunal order for case 4551989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10026828-Tenancy_Tribunal_Order.pdf.

ORDER Tenancy Tribunal Case 4551989 — Tenancy dispute

Order

must pay immediately, calculated as shown in the table below: LandlordTenant Rent rebate: leaks and associated issues$13,800.00 Rent rebate: toilet/ shower$6,500.00 Rent rebate: unuseable bedroom$3,000.00 Filing fee reimbursement$20.44 Total award$23,320.44 Total payable by Landlord to Tenant$23,320.44

Reasons

Both parties attended the hearing. The applicants attended by teleconference.
The landlord was represented by its property manager Ms Taylor.
The tenancy agreement is between the landlord and the tenants. No agency is disclosed in the agreement, although the tenants say that they were aware the landlord was acting as agent and very soon became aware of the owners’ identity. During the tenancy there was direct communication between the tenants and the owners.
Although the owners are not named as parties to these proceedings, they are potentially impacted by the outcome, and it is appropriate that they be able to participate. The owners attended through their counsel Mr. Skinner. Background
The parties entered into a two year fixed term tenancy from 12 December 2021 to 12 December 2023. By agreement the tenancy ended earlier, on 13 March 2023.
The tenants say that throughout the tenancy there were issues with the condition of the premises which led to them forming the view that the premises were not safe or suitable for their family to continue living in. They requested that the tenancy be ended before expiry of the fixed term, which the landlord agreed to.
Although there are several issues raised by the tenants, there are essentially two grounds of claim identified: First, that in the cooler seasons, one of the bedrooms which they had intended to be occupied by their two youngest sons, was unable to be used for that purpose because of the cold and severe draughts affecting the bedroom. They say that throughout the tenancy the adjoining shower could not effectively be used because it leaked and the toilet could not be used because the cistern ran continuously and needed to be turned off at the water supply tap. Second, the tenants say there were problems with ongoing leaks, which first manifested in a leak through the ceiling onto the kitchen bench, in March 2021. They say that other ceiling leaks became apparent elsewhere throughout the tenancy, depending on the prevailing weather conditions. They say they were also problems with water coming in through the windows, particularly the East facing windows which bore the brunt of the sea winds and weather, and with consequential mould growth.
The evidence shows that the landlord engaged a variety of professionals and tradespeople to try and fix those ongoing issues. Then, in October 2023 the owners arranged for significant roofing work to be undertaken. It was recognised that the roofing work would interfere with the tenants’ use of the premises. A rent reduction from $1,200.00 per week to $900.00 was offered for the projected duration of the works, from 24 October 2022 to 8 January 2023.
After those roofing works were completed, the tenants declined to reinstate the rent and continued to pay rent at $900.00 per week through to the end of the tenancy.
Once the tenancy had ended, after some debate and deduction, the remaining bond was returned to the tenants. Analysis
Under section 45(1)(b), a landlord must provide and maintain the premises in a reasonable state of repair.
The landlord was also required to ensure that the premises complied with Healthy Homes standards (s.45(1)(bb)). As a general tenancy with a commencement date of 12 December 2021, the premises were required to be compliant within 90 days of commencement date, being 12 March 2022.
Breach of either of those obligations is an unlawful act for which exemplary damages of $7,200.00 may be awarded.
Before this tenancy, the landlord had obtained a Healthy Homes assessment from Healthy Estate Limited. Its report dated 11 February 2021 was provided in evidence. The outcome of its assessment was that: a. the premises were compliant with the insulation standard; b. the premises were compliant with the ventilation standard except in the upstairs ensuite bathroom which required installation of an extractor fan; c. the premises were compliant with the heating standard; d. the premises were not compliant with the draught stopping standard due to i. broken window ledge causing draughts; ii. gaps in the window frames causing draughts; iii. need for the door be replaced in an upstairs bedroom leading to the roof space; and iv. all windows requiring inspection and resealing as required. e. the premises were not compliant with the moisture ingress and drainage standard noting that, “the [prior] tenant.......has multiple areas of concern in the house that has mould in the walls” f. notes to the report record that “The [prior] tenant.........has advised the rooms in general are cold... Ensuring the gaps causing draught are addressed ......will assist to reduce cold throughout the home. [Tenant] has noticed a small storage cupboard in the upstairs room has access to the roof.”
The evidence indicates that the property manager gave a summary of that report to the owners. The owner’s counsel suggests that the owners may not have had a completely full or accurate summary given. That is a matter between the owners and the landlord as their agent. The tenants are entitled to proceed on the basis that what is known to the landlord as agent is known to the owners as principal.
The owners authorised work intended to address the issues that prevented the premises from meeting Healthy Homes’ standards. Although not commissioned by the landlord, that work appears to have included some significant roofing work.
No follow up assessment was undertaken to confirm that the work arranged by the owners had brought the premises to compliance with Healthy Homes standards.
A further healthy homes assessment was undertaken in March 2023, after the major roofing work had been completed. That report assessed the premises as then compliant with the moisture ingress standard but still/ again did not comply with the draught dropping standard. Has the landlord committed an unlawful act(s)?
The premises were assessed as failing to comply with the draught stopping standard before this tenancy began and again after it had ended. The tenants had the same issues with draughts and cold as reported by the prior tenant to the Healthy Estate Ltd assessor. Those concerns were made known to the landlord.
I find it more likely than not that the premises did not comply with the draught stopping standard during this tenancy.
The premises were assessed as failing to comply with the moisture ingress standard before this tenancy began. It was assessed as compliant after the tenancy had ended, following major roofing work in October 2022.
The tenants have provided oral evidence and a number of photographs which show the extent of the leaks affecting the premises. The photos and video footage were sent to the landlord at the time.
Those photos show water dripping onto and pooling on the kitchen bench and floor, spotlights hanging from above the bench where they could not be reinstalled due to concerns about moisture in the ceiling space. Black mould was noted there. There is evidence showing water dripping into the lounge area onto the carpet and seeping though light fittings, creating water blisters under ceiling paint and under the eaves.
Correspondence from the tenants to the landlord notes lights blowing after rain and water coming in through windows, again confirmed by photographic evidence.
Given that evidence, I find it more likely than not that the premises did not comply with the water ingress standard during this tenancy.
By its failure to ensure that the premises met those standards, the landlord has breached s.45(1)(bb) and has thereby committed an unlawful act.
It is not disputed that the tenants’ occupation of the premises was beset by problems with the leaks, a leaking shower, a toilet cistern that wouldn’t shut off and an unacceptably cold and draughty upstairs bedroom.
I find that the landlord did not meet its obligation to provide and maintain the premises in a reasonable state of repair. That too constitutes an unlawful act.

Should exemplary damages be awarded?

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.
The tenants say that when they were moving out, the moving company they had engaged told them they had moved the previous tenant out as well and she said she had left because of major problems with the property and the cold. They say that the landlord was well aware of the issues with the property before their two year fixed term agreement was signed and that the landlord owed an obligation to the tenants to forewarn them. They say that of itself provides grounds to consider an award of damages.
The landlord has provided a statement from the previous tenant who denies making those statements to the movers.
I accept it is very likely that had they been aware of the premises’ shortcomings, the tenants would not have agreed to take the tenancy – let alone commit to a 2 year term.
I find it surprising and disturbing that the Healthy Homes compliance statement given to the tenants, references the Healthy Estate report, but makes no mention of the premises having been assessed in that report as failing to meet moisture ingress standards. While the property manager says she was entitled to assume the issues had been addressed by the roofing work carried out after that report was provided, clearly those problems had not been fixed and there was no independent foundation for that assumption.
However, the landlord has taken the step of having the premises assessed for compliance with Healthy Homes standards before the tenancy. On receiving the report, significant work has been authorised by the owners to try and ensure compliance, including expensive roofing work and the application of new window sealing.
Similarly, the evidence shows that during the tenancy many attempts were made by the landlord to find and rectify problems with the premises, brought to its attention by the tenants.
The evidence shows that those measures were not effective to prevent the flaws in the premises adversely impacting the tenants. I consider it likely that the problems with water ingress were made worse by the unusually severe weather events that occurred during the tenancy.
Exemplary damages are punitive in nature and given the steps taken by the landlord to try and address the problems, on balance I do not find it proved that it would be just to make an award of exemplary damages against the landlord.
There have been unacceptable consequences for the tenants from having to deal with those ongoing issues. In my view they are appropriately addressed through a compensatory award rather than by the imposition of exemplary damages.

What compensation should be awarded?

It is not seriously disputed that the tenants are entitled to compensation for having had their use and enjoyment of the premises impacted by problems with the premises. The question is one of quantum.
The landlord suggests that compensation has sufficiently been paid by the tenants having received a rent abatement from 24 October 2022 to the end of the tenancy and by the landlord having allowed the tenants to end the tenancy before the end of the fixed term. It is suggested that the tenants agreed to that arrangement, so a settlement of their claims has already been made.
First, I do not see the landlord’s agreement to end the tenancy early as a significant concession on its part. The tenants were entitled to expect the landlord’s agreement to them ending the tenancy without penalty, given the landlord’s failure to provide adequate premises. Second, I do not read the parties’ communications as constituting a binding settlement agreement. When the above arrangement was offered in connection with the roofing work, the tenants, at the time, were asking for additional compensation for previous/ other issues.
It is important to note that in assessing compensation, questions of intent or culpability do not have the relevance they do when considering whether exemplary damages ought to be awarded in terms of s.109(3).
Instead, the exercise required of the Tribunal is to assess, as best it can on the available evidence, the loss caused to the tenants by the landlord's breaches as identified above, intentional or not. That is necessarily an inexact calculation but should take into account the effects of those breaches, both direct and indirect, on the tenants' use and enjoyment of the premises and the duration of those effects.
The evidence establishes the following as consequences for the tenants of the landlord’s breaches: a. the upstairs bedroom was not suitable for their sons’ use during colder months; b. the upstairs toilet was not property functional through the tenancy despite the landlord arranging replacement of the cistern valve – it continued to run onto the toilet bowl unless turned off at the inflow tap; c. the upstairs shower was not able to be used properly throughout the tenancy because it leaked; d. from March 2022 through to the end of the tenancy the tenants had to deal with various leaks, which the photographic evidence shows were at times quite major and which on a daily basis meant the tenants had concerns about where water would enter their home when it rained; e. as a consequence of those ongoing problems, the tenants were engaged more or less constantly in communicating with the landlord about the issues, accommodating visits by tradespeople, discussing the problems with the owners and following up the owners’ inspection.
In terms of s.38, the tenants had a right to expect quiet enjoyment of the premises, without interference with their reasonable peace, comfort, or privacy.
The evidence persuades me that the tenants' rights under s.38 were fundamentally infringed by having to deal with issues that it was the landlord's responsibility to prevent.
The tenants say that the premises were unfit for occupation, ought never have been rented and that they should be refunded all rent paid by them.
While I accept that shortcomings with the premises had a major impact on the tenants' use and enjoyment of them, there is nevertheless a benefit to the tenants in having had occupation of the premises, which needs to be taken into account.
I assess a reasonable rent abatement as follows: a. $13,800.00 being 25% of the rent paid since 21 March 2022 (the date the evidence first shows leaks impacting on the tenants) to the end of the tenancy, calculated as follows: 21 March 22 to 23 October 2022 (31 weeks @ $1200.00 per week) = $37,200.00 + 24 October 2022 - 13 March 2023 (20 weeks @ $900.00 per week) = $18,000.00 - total rent paid during period $55,200.00 x 25% = $13,800.00. b. $6,500.00 being $100.00 per week through the 65 week term of the tenancy for one of the showers and toilets not properly functioning; c. $3,000.00 being $200.00 per week for 15 weeks for one of the bedrooms being unusable during colder months.
Because have succeeded with claims I must reimburse the filing fee.

Tenancy Tribunal case 4551989 — Tenancy dispute at ORDER

Tenancy Tribunal case 4551989 — Tenancy dispute at ORDER

Order

Reasons

Should exemplary damages be awarded?

What compensation should be awarded?

Property management

Order

Reasons

Should exemplary damages be awarded?

What compensation should be awarded?

Property management