What was Tenancy Tribunal case 4561789 about?

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

How much money was awarded in case 4561789?

Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $321.43 awarded to landlord

What type of tenancy dispute was case 4561789?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4561789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9578075-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4561789 about?

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

How much money was awarded in case 4561789?

Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $321.43 awarded to landlord

What type of tenancy dispute was case 4561789?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4561789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9578075-Tribunal_Order_Redacted.pdf.

119A St Heliers Bay Road, St Heliers, Auckland 1071 Tenancy Tribunal Case 4561789 — Healthy homes

Claims and awards in Tenancy Tribunal application 4561789 — net $678.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$321.43		Rent arrears
Exemplary damages: Breach HHS		$1,000.00	Breach HHS
Total award	$321.43	$1,000.00
Net award		$678.57
Total payable by Landlord to Tenant		$678.57

Claims and awards in Tenancy Tribunal application 4561789 — net $678.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$321.43		Rent arrears
Exemplary damages: Breach HHS		$1,000.00	Breach HHS
Total award	$321.43	$1,000.00
Net award		$678.57
Total payable by Landlord to Tenant		$678.57

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] $678.57 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.
The tenant has filed a claim alleging that the landlord has breached healthy homes standards and claiming that a notice of termination was retaliatory. DescriptionLandlordTenant Rent arrears$321.43 Exemplary damages: Breach HHS $1,000.00 Total award$321.43$1,000.00 Net award $678.57 Total payable by Landlord to Tenant $678.57 Exemplary damages: Breach HHS $1,000.00 Total award$321.43$1,000.00 Net award $678.57 Total payable by Landlord to Tenant $678.57
The landlord has filed a cross-application claiming rent arrears and compensation for cleaning costs.
At the outset, the tenant indicated they were not pursuing the claim in relation to the retaliatory notice. That claim is withdrawn. Approach in the Tribunal
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That 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”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
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 the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Landlord Claim 1 – Rent Arrears
This tenancy commenced on 3 June 2022 and ended on 6 June 2023.
The landlord provided a rent summary of sorts. The summary was not in an easy format and did not include a running total of arrears.
For future reference, I advise the landlords that the summary they provided is unlikely to be accepted by the Tribunal and I encourage them to download the free template from Tenancy Services website here.
However, in this case it seems clear that the tenants had paid rent throughout. The only issue was in relation to the last few days of the tenancy. The landlord said that rent was paid up to the period ending 2 June 2023, leaving the period 3-6 June unpaid.
The tenants took issue with the claim for rent arrears, however, were unable to point to any error in the landlord’s records.
For the benefit of both parties, I have independently calculated the rent payable for the period 3-6 June 2023, as shown in the image below. The amount is $321.43, and I therefore order the tenants to pay that amount to the landlords.
The amount ordered is proved. Landlord Claim 2 - Cleaning
Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness. See s 45(1)(a) Residential Tenancies Act 1986 (“the Act”). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy. See ss 40(1)(c) and (e)(iii) of the Act.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The Act does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
In this case, the landlord was unable to furnish photographs showing the premises at the start of the tenancy, other than 11 photographs which were used for advertising purposes. It is unclear when these photographs were taken.
Photographs taken for advertising are of course trying to show a property in its best light. They do not always reflect the overall state of the premises. On the other hand, the photographs provided by the landlord to support this claim (another 11 photos) were all taken at extreme close up perspective and focused on areas that were not clean.
That means a proper comparison of the overall state of the premises at the end of the tenancy is very difficult.
The tenants said that they cleaned the place thoroughly before they left; in addition, they provided photographs showing the premises when they left. Those photographs did show the property as being clean and tidy, and included photos of the inside of cupboards and shelves.
In the end, bearing in mind that it is for the landlord to establish the claim, I find there is insufficient evidence to prove that the tenant did not leave the premises reasonably clean and tidy.
This claim is therefore dismissed. Tenant Claim: Breach of Healthy Homes Standards
The tenants say that the property was not compliant with Heathy Homes Standards (“HHS”), and that the landlord falsely stated in the tenancy agreement that the property was compliant.
Because this tenancy commenced on 3 June 2022, the compliance date for this premises was no later than 1 September 2022 (90 days from the commencement of the tenancy).
The tenants said that the landlord had completed the HHS compliance statement in the tenancy agreement and declared that the property was already fully compliant with HHS.
The tenants said that there were issues from the beginning of the tenancy, and they asked the landlords to resolve things. In particular the tenants were concerned about draughts and ventilation, but they also raised issues regarding heating and other matters.
This culminated in the tenant serving a 14-day notice on the landlords in October 2022. Some of the issues were then remedied.
I have sighted various emails and text messages between the parties regarding these issues.
Ultimately, the tenants paid for their own HHS assessment from [Maintenance Company]. I have sighted the assessment report which is dated 3 April 2023. That report states that on that date the property was non-compliant in respect of draught stopping and ventilation and also identified some issues with the external cladding.
The landlords said that as far as they were aware the property was compliant. They said that if they knew it was not, they would have corrected that.
They said that when they purchased the premises, they were advised by the previous owner that the property was compliant, or (in relation to the ventilation) that an exemption applied. The landlords said they relied on this assurance from the vendor and received a “certificate” stating that the premises were Healthy Homes Compliant. The landlords were not able to produce this certificate.
The landlords said they had no reason to doubt what they were told.
They said that the tenants had not provided them with a copy of the [Maintenance Company] report and that from April onwards the relationship had deteriorated to the point where they considered they could not longer enter the premises to attend to any issues raised.
Section 45(1)(bb) of the Act requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Failure to comply with this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7200.00. See section 45(1A) of the Act.
In this case, I am satisfied (based on the independent [Maintenance Company] report) that the tenants have established that the landlords have breached their obligations by failing to comply with the HHS.
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 interest of the other party, and the public interest. See section 109(3) of the Act.
Intentional means that the party who has committed the breach must be aware of it. The focus of the intention however must be the act (or omission) and not the legal knowledge of the offending party. The District Court has confirmed that: Like all citizens... [the landlord is]... deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law. 1
I have determined that it is more likely than not that the established breaches were intentional. The landlords did not take steps to ensure the premises were HHS compliant, because they did not think they needed to and so it was clearly a deliberate omission. This has meant that the tenants were living in a non-compliant premises for the duration of the tenancy. There is clearly a strong interest for tenants, landlord and the public generally to have properties that are properly maintained, healthy warm and safe.
I consider it would be just to make an order. However, I am mindful that the landlords were not necessarily acting in bad faith and so I will keep the quantum of damages towards the lower end of the scale. In this case, I award $1000.00 in exemplary damages. Final Remarks, Suppression and Filing Fee
I want to make it clear that this issues is determined not on the basis of who is “believed” but on the basis of whose claim is corroborated by independent evidence.
Throughout the hearing, it seemed that the landlords were under a fundamental misunderstanding about their obligations.
A landlord has a positive and ongoing obligation to comply with HHS. The onus is not on the tenants to tell the landlord that they are not complying; rather the landlord has a positive duty to ensure that they are compliant. 1 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37
A landlord cannot simply rely on assurances from a previous owner of the premises. Basic due diligence is required. At a minimum, before entering into a tenancy agreement, a reasonable landlord should obtain an independent assessment from an accredited HHS assessor to ascertain whether or not the premises are compliant. These reports are relatively inexpensive and can provide assurance for a landlord that they are meeting their obligations.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, both parties have had some measure of success. As there are no countervailing reasons not to do so, I therefore grant suppression of both parties’ names and identifying details.
As both parties have had some success, I make no order in respect of the filing fee; costs will lie where they fall. J R Smith 28 October 2023

Tenancy Tribunal case 4561789 — Healthy homes at 119A St Heliers Bay Road, St Heliers, Auckland 1071

At a glance

Tenancy Tribunal case 4561789 — Healthy homes at 119A St Heliers Bay Road, St Heliers, Auckland 1071

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions