What was Tenancy Tribunal case 4562294 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 4562294?

Property Damage: $4,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4562294?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4562294?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9647766-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4562294 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 4562294?

Property Damage: $4,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4562294?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4562294?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9647766-Tribunal_Order_Redacted.pdf.

39 Evergreen Crescent, Trentham, Upper Hutt 5018 Tenancy Tribunal Case 4562294 — Property damage

Claims and awards in Tenancy Tribunal application 4562294 — net $5,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity and furniture damage	$4,000.00	loss of amenity and furniture damage
Exemplary damages: invalid notice	$1,000.00	invalid notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,020.44
Total payable by Landlord to Tenant	$5,020.44

Claims and awards in Tenancy Tribunal application 4562294 — net $5,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity and furniture damage	$4,000.00	loss of amenity and furniture damage
Exemplary damages: invalid notice	$1,000.00	invalid notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,020.44
Total payable by Landlord to Tenant	$5,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Oxygen.co.nz Limited as agent for Nigel Blair and Catherine O’Kane must pay [The tenant/s] $5020.44 immediately, calculated as shown in the table below: Reas ons:
Both parties attended the hearing. Susie Ellis appeared for the landlord along with Nigel Blair one of the owners. The tenant represented herself and also had a support person, [The tenant/s support person].
This tenancy was reasonably long (approximately 5½ years), commencing in July 2017 and ending in February 2023.
The tenancy ended following the landlord issuing a 90-day termination notice based on section 51(2)(f) Residential Tenancies Act 1986 (“the Act”).
Following the end of the tenancy, the tenant has brought a number of claims against the landlord, seeking compensation and exemplary damages.
Those claims are: a. Failure to maintain/Breach of HHS i. Mould ii. Other Instances of Failing to Repair in Timely Manner b. Retaliatory or invalid notice of termination c. Failure to keep proper records d. Breach of smoke alarms regulations
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 (in this case, the tenant) 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.
In this case, both parties have submitted significant documentary evidence including statements, timelines, emails, invoices/quotes, and photographs. There was also a hearing that was reasonably lengthy. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Failure to Maintain/Breach of HHS - Mould
From 1 July 2019, all residential must be insulated to a minimum standard. See Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Compliance dates for the remaining Healthy Homes Standards (“HHS”) vary depending on the tenancy. Relevantly in this case, all private rentals were to comply within 90/120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
This tenancy commenced on 14 July 2017. As such, the compliance date in relation to this tenancy is 1 July 2025.
Strictly speaking therefore, the HHS did not apply to this tenancy.
However, all landlords are required to comply with any requirements in respect of buildings health and safety under any enactment so far as they apply to the premises. See section 45(1)(c) of the Act.
Prior to the HHS coming into force, the minimum standards for residential premises were found in the Housing Improvement Regulations 1947.
Those regulations provide, among other things, that “every house shall be free from dampness” (regulation 15).
So, whether the claim is under the HHS proper (section 45(1)(bb) of the Act), or section 45(1)(c) of the Act, the premises must be free from dampness.
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.
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.
I outline the above because the source of mould can sometimes be a complex issue to determine.
Both parties presented significant evidence in relation to the mould and moisture issues raised by the claim. There was much conflicting evidence about what had or had not occurred over the course of 5 years.
In brief summary, the tenant’s position was: •She raised issues about mould almost as soon as she moved in 2017; in particular a smell of mould in the master bedroom •Consistently raised these issues throughout the tenancy, not just with her initial property manager Karen but also subsequently with Renee and Maria •Was home during the day most of the time and always adequately ventilated the property by opening windows. •Usually dried washing in the dryer in the garage which was ventilated to the outside; the only exception was delicates that were dried on the clothes horse underneath the heat pump •Used the heat pump in winter but the heat pump did not reach the bedrooms •When even more visible mould started to show in 2019 and 2020, requested something be done again with urgency •Had to wait a further 15 months until a moisture report was finally commissioned •The report showed two areas of elevated moisture levels and found that the ventilation system was not working. •The report recommended repairing or preferably replacing the ventilation system along with along with cleaning, mould treating and repairing the identified leak areas. •After extensive back and forth between the tenant and property managers (plural) about the repair or replacement of the ventilation system the tenant obtained quotes and tried to persuade the landlord to install an upgraded system. This was not done. •Her health (and that of her family) was adversely affected during the tenancy by the mould in the house and since moving to a new place they have not had the same issues. •In addition, the mould resulted in damage to furniture and bedding. •Photographs and copies of emails and other messages were provided
In summary, the landlord’s position was: •That there was no underlying moisture problem until this tenant moved in •That they had no records of reports of mould problems until 2021 •That records showed there was an electrical callout to do with the DVS in October 2017. At that point it was decided to simply turn it off and not repair it because the tenant thought it blew cold air out and there was a heat pump by that point anyway •That the tenant was keeping the house shut up and was drying her washing inside under the heat pump and this was contributing to the moisture •That after the moisture report in July 2021 a quote was obtained from [ventilation company] for a new DVS but it was not installed because the tenant wanted a different system which was too expensive. •That other than the ceilings and light fittings, the tenant never mentioned mould smells in carpets or anything of that nature. •That during an inspection in November 2022 the mould situation was “quite confronting” and they were concerned for the tenant’s health •That the tenant admitted in November 2022 she was not opening windows because of her allergies •Purchased an air purifier straight away and delivered it after that inspection •That the tenant had various sensitivities to cleaning products or mould removal products that made their attempts to remedy the problem more difficult •That as a result a professional cleaner was arranged to meet with the tenant and discuss a plan. That cleaner ([Cleaner]) gave evidence at the hearing and confirmed the meeting in December 2022 and her assessment of the mould. She described it as largely superficial (as in, able to be cleaned off) apart from one area in the lounge •That there were delays when the tenant or other family members had COVID and things had to be cancelled •That since the tenant moved out the existing DVS was repaired, and there have been no issues since that time. •Photographs, a timeline, and other documentary evidence were provided
On balance, I am satisfied that the tenant has established that the premises were inherently prone to mould.
This case is somewhat unique in that there appeared to be a readymade solution in terms of the DVS system that was already in the property. This was not being used. According to both parties it stopped working in 2017 and there was no repair done.
The landlord said that this was because the tenant did not want to use it. However, the log of inspection reports right from the beginning of the tenancy records: “DVS – not working and will not be fixed as the new heat pump has been put in.”
A ducted ventilation system (DVS) is entirely different from a heat pump. A heat pump will efficiently heat, and to some degree dehumidify air within a room. However, a heat pump will not assist with moisture and damp in rooms that are located away from the heat pump.
On the other hand, a DVS is designed to circulate the air within the home, and this includes circulating the warm dry air (from the heat pump) into other parts of the house.
I find that the landlord ought to have had the DVS repaired as soon as it was identified as not working (in 2017).
There is conflicting evidence as to whether the tenant said she did not like/would not use the existing DVS system back in 2017. She accepts that she did indicate a preference for a different system in 2021.
On balance, I am satisfied that the tenant did not indicate an unwillingness to use the DVS system in 2017.
The comment in the “inspection report timeline” document that “the tenant was clear that she did not want the DVS to be repaired” was not a contemporaneous record but a note made in preparation for this hearing. Later notes were similarly made in preparation of the hearing.
For the sake of argument, even if the tenant had indicated she did not want it to be repaired, given the vital importance of good ventilation to mould and moisture problems, a prudent landlord would nevertheless have done so bearing in mind it is a landlord’s obligation to ensure that the premise are free from dampness.
The landlord suggests that because there were no mould and moisture problems before this tenancy, and that there are currently no mould and moisture problems, the Tribunal should infer that the issues were as a result of the tenant’s behaviour (in failing to ventilate).
In the absence of clear evidence to support this claim, I do not accept that proposition.
Rather, the more plausible explanation is that the DVS was not working during this tenancy. It previously worked and is apparently again repaired and working.
For completeness, I record that neither the photograph which showed some delicates being dried inside on a rainy day in Wellington nor a comment made about closing windows due to allergies during an inspection in November 2022 are indicative of a general pattern of failure to ventilate the premises.
Having said that, I do accept that from 2021 onwards, the tenant may have contributed to some of the delay in an attempt to persuade the landlord to install a system of her choosing. She also accepted that at that point she did make a comment about preferring not to have the current system which apparently blew cold air out of the vents.
Nevertheless, it is ultimately not a tenant’s decision; it is for a landlord to determine what fixtures are to be installed in the premises.
Hypothetically, if the landlord had proceeded to repair or replace the DVS promptly when there were issues in 2017, after which the tenant elected not to utilise the system, she may well have been responsible for the mould and moisture problems.
However, that can only be speculative at this point because the DVS was not in fact working.
Having made the above findings, I must now consider the question of compensation.
In this case the primary loss I must focus on in deciding the amount to compensate the tenant is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenant was essentially paying for something they have not received.
In this case, there has been a loss of amenity for the duration of the tenancy. The tenant paid rent and in return expected a home that was free from dampness. For the

Reasons

and to the extent outlined in the paragraphs above, she did not receive that.

However, it seems clear that the most significant impacts and the most visible signs of mould were from 2021 onwards.
Overall, I consider a global figure to recompense the tenant for this loss of amenity is $2000.00.
The tenant also seeks compensation for items of furniture that were damaged by the mould, specifically her bedroom furniture and the children’s beds. I have considered that claim carefully.
Although the tenant has provided quotes for full replacement of those items, the Tribunal will generally not compensate for full replacement. The Tribunal must take into account betterment and depreciation (factoring in the age, quality and condition of the items when the damage occurred) so that the tenant is restored to the position she would have been but for the breach and is neither better nor worse off.
I have determined that an appropriate level of compensation for the furniture is $2000.00. Failure to Maintain/Breach of HHS - Other Repairs
Section 45(1)(b) of the Act requires landlords to provide and maintain premises in a reasonable state of repair. Tenants are required to notify landlords promptly of any damage to premises or the need for any repairs (section 40(1)(d)) but ongoing maintenance is ultimately a landlord responsibility.
Whether or not a landlord has responded in a reasonable timeframe to remedy issues raised by a tenant will depend on the circumstances.
The tenant said that there were various other repair and maintenance issues throughout the tenancy.
For example, she said there were times when she would have to follow up multiple times before things got done, particularly with Karen (Renee was much quicker). She said it took over 2 months to get the waste disposal fixed in 2017, and more recently the knobs on the hob in the kitchen needed replacing and it took 5 months. A shower door that had a problem never got fixed at all.
The landlord said that as far as they were concerned there were no significant delays for any repair work logged. The landlord acknowledged that there may have been the odd occasion when things got missed but these were promptly attended to when followed up. Regular inspections were taking place throughout and so any issues could be identified early.
The landlord also provided a timeline and schedule of maintenance and invoices.
On balance, I am not persuaded that the landlord has failed to maintain the premises. There were a few instances of delay or oversight, but in the circumstances at the time (e.g., COVID lockdowns) I am not satisfied that the delays were unreasonable. By and large the landlord attended to maintenance and repair issues reasonably promptly when they were raised. Retaliatory/Invalid Notice
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) of the Act.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
However, section 54(1) also requires that any application to declare a notice to be retaliatory must be made within 28 days of the notice being served.
In this case, the termination notice was served on 18 November 2022. The application was not brought until 30 April 2023, some 5 months later. This is well outside the statutory timeframe; therefore, I have no jurisdiction to consider this claim.
It must therefore be dismissed.
However, there is no time limit for consideration as to whether a notice is valid.
From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under section 51(1) or (2) of the Act.
The notice given in this case was in reliance on section 51(2)(f) of the Act, which allows a landlord to give 90 days’ notice to terminate a periodic tenancy if “extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— i. it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and ii. the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
In this case, the tenant said that extensive works were not in fact carried out in the premises and that the premises were relisted for rent within 15 days of her vacating.
The landlord accepted that extensive works were not carried out at the premises.
The landlord said that this was because once the tenant had vacated and an inspection conducted, it was discovered that only minor remedial works were required. There was no need for replacement of any walls or ceilings and instead some painting and more basic work was undertaken.
However, the landlord said that because they had originally planned on removing the carpet, cutting into walls and potentially re-doing the ceilings, the tenant could not be present for this and so the termination notice was valid.
The difficulty the landlord has here is that the assessment of whether the works were “extensive” were based on guesses and assumptions.
There was no defined scope of works, no building reports, no assessments, no quotes obtained, no actual plan for what was to occur. The landlord was simply not in a position to know what work might actually be required.
In short, at the time of issuing the notice the landlord could not establish that extensive works were required, only that they “might be” required.
A landlord cannot terminate a tenancy based on “unknowns” which the landlord sought to rely on.
For these reasons, I find that the 90-day termination notice served on 18 November 2022 is invalid.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice (s 60AA of the Act). Exemplary damages may be awarded, up to a maximum of $6,500.00 (s 60AA and Schedule 1A 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 (see s 109(3) RTA).
In this case, I find that the landlord must have known that they were not entitled to give notice in this way. I make this finding because the landlord is a professional property management company with an extensive portfolio of properties.
They are expected to know the law, and decisions in this Tribunal relating to notices under section 51(2)(f) have made clear what is required.
Taking into account the other factors in section 109(3), in particular the obvious stress on the tenant at having to find alternative accommodation and the public interest in ensuring that tenancies are only terminated in accordance with law, I find it is just to make an order.
Having said that, I am not aware that this landlord has previously committed breaches of this nature and am therefore inclined to keep the award to a minimum.
I therefore order the landlord to pay exemplary damages in the amount of $1000.00. Failure to Keep Proper Records
Section 30 of the Act requires landlords to keep proper business records. However, this requirement relates to rent and bond payments and the requirement for such financial records to be retained for a minimum period.
The section does not apply to “records” in the broader sense of the word.
In this case, the tenant’s focus was on a failure by the property manager (especially early in the tenancy) to adequately log communications and requests made by her.
However, while it is certainly prudent for landlords to keep such records (as has been evidenced by this very dispute) it is not a legal requirement to do so.
There is nothing in this claim and it is therefore dismissed. Breach of Smoke Alarm Regulations
From 1 July 2019, landlords must comply with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Those regulations provide that every smoke alarm must be a “qualifying smoke alarm” and regulates where such alarms must be placed. The definition of a “qualifying smoke alarm” is found in regulation 7.
In this case, the tenant said that she was told by Karen at the beginning of the tenancy that the smoke alarms were connected to the burglar alarm (which she also said was not able to be used properly).
She said that at the end of the tenancy after some issues with the burglar alarm, she discovered there was no hard wired smoke alarm connected to the burglar alarm. She found this to be very concerning.
The records provided by the landlord show that on 16 December 2016 wired smoke alarms were disconnected and replaced with photoelectric 10-year alarms.
While I accept that there may have been some confusion in what the tenant was told, there were nevertheless qualifying smoke alarms present in the premises. There is no requirement for hard wired smoke alarms.
As the tenant has not established that the landlord has breached this obligation, this claim must be dismissed. Final Remarks, Suppression and Filing Fee
I would like to thank all parties and witnesses for conducting themselves professionally and courteously during the hearing. I am conscious that it was stressful for all concerned.
I also want to make it clear that this is a legal proceeding; it is not a moral judgement of the parties. All parties impressed me as being genuine and honest and I accept the landlord’s evidence that the owner is someone who wanted to do the best he could for his tenants. It is simply that on this occasion, mistakes were made.
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, the tenant has substantially succeeded in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of her name and identifying details.
Because the tenant has substantially succeeded with the claim, I have reimbursed the filing fee. J R Smith 9 November 2023

Tenancy Tribunal case 4562294 — Property damage at 39 Evergreen Crescent, Trentham, Upper Hutt 5018

At a glance

Tenancy Tribunal case 4562294 — Property damage at 39 Evergreen Crescent, Trentham, Upper Hutt 5018

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