How much money was awarded in case 4565214?

Compensation: $2,050.00 awarded to tenant; Property Damage: $2,500.00 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 4565214?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4565214?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9394644-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4565214?

Compensation: $2,050.00 awarded to tenant; Property Damage: $2,500.00 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 4565214?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4565214?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9394644-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 14 Downing Street, Glenfield, Auckland 0629 Tenancy Tribunal Case 4565214 — State of repair

Q: What was Tenancy Tribunal case 4565214 about?

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

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Order

Claims and awards in Tenancy Tribunal application 4565214 — net $5,570.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for loss of amenity	$2,050.00	Compensation for loss of amenity
Exemplary damages – failure to maintain	$2,500.00	Exemplary damages – failure to maintain
Exemplary damages – Breach HHS	$1,000.00	Exemplary damages – Breach HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,570.44
Total payable by Landlord to Tenant	$5,570.44

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.

G.M Realty Limited as Agent for Umesh Mishra must pay [The tenant/s] $5,570.44 immediately. DescriptionTenant Compensation for loss of amenity$2,050.00 Exemplary damages – failure to maintain$2,500.00 Exemplary damages – Breach HHS$1,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$5,570.44

The tenant’s application for compensation for failure to lodge the bond is dismissed.

Reasons

Both parties attended the hearing.

The tenancy commenced on 16 July 2022 and ended pursuant to a 90-day notice to terminate under s51(2)(f) on 14 July 2023.

It is agreed that at the start of the tenancy there were maintenance issues at the property. The landlord agreed to repair those prior to, or shortly after the tenancy commenced. The tenant accepted the property, and the rent was negotiated on the basis that the repair work would be carried out.

The landlord states that they were told, by the tradesman, that all work was completed. The landlord provided an invoice for work done on 16 and 18 November 2022. That work is for repairs which do not form part of the tenant’s claims but may well have been the work anticipated at the start of the tenancy.

The tenant has contacted the landlord on several occasions seeking repair work. Significantly, on 28 September 2022 the tenant texted landlord about repairs to the hot water, the clothesline, a leak in the laundry and damage to the bathroom floor. That message implies a previous request for repairs, but the date of the previous request is unclear.

The landlord responded to that message on 13 October 2022 stating that she had had covid, that “urgent” requests should be referred to the office and seeking information on the required work.

The tenant followed up with confirmation of the required work, but both text and email.

Some work was done in November, as noted, but not the items sought by the tenant.

The next contact was a request for an inspection in later December 2022. As the tenant was working in hospitality and working longer hours up to Christmas, she asked for the inspection to be undertaken on a weekend, preferable in the new year. The landlord agreed, the inspection was booked for 7 January 2023.

On 5 January 2023 the tenant sent a text message to the landlord seeking to have some additional issues – a light switch in the kitchen and fungus growth in the bathroom – addressed.

The property inspection took place on 28 January 2023. The inspection report notes the tenant’s requests for repair and includes a note that the “water is leaking through the hot water cylinder underneath the floor. The floor coverings about the wash basin has [sic] sunk”, that “the floor under the hot water cylinder is wet”, and “the rain was dropping through the ceiling above the window in the storm.”

On 1 March 2023, the tenant again texted the landlord asking why her messages, calls and emails had been ignored and asking when the maintenance would be attended to. The landlord replied, the same day, confirming the list of work she understood was required. The tenant agreed and completed the list with additional items not mentioned by the landlord but included in previous communications. That list of items forms the basis of the tenant’s applications.

On 14 April 2023, the landlord advised the tenant that the plumber would be in contact to arrange time for him to assess the issues.

On 17 April 2023, the tenant texted the landlord again seeking repairs to the bathroom floor as she was concerned someone would fall through it. There was no response to that message.

The tenant texted the landlord again on 20 April 2023 to follow up that request. No response was received to that message.

The plumber attended on 22 April 2023. His visit and estimate of the repairs required was the basis of the 90-day notice to terminate the tenancy for repair work to be completed. That notice was issued on 3 May 2023.

On 3 May 2023, the tenant injured her ankle and wrist when her foot went through the bathroom floor. She was off work for a month as a result.

The tenancy ended on 14 July 2023.

The tenant seeks compensation for the loss of amenity caused by the damage to the bathroom, primarily, but also from the mould and fungus in the property causing damage to possessions and respiratory illnesses. She also seeks compensation for the failure to maintain the property and breaches of the Healthy Homes Standards (HHS).

The tenant initially sought compensation for failure to lodge the bond, however evidence was presented to show the bond was lodged with the bond centre promptly, so that application is dismissed. Failure to maintain and loss of amenity

The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair

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.

The landlord was on notice for months that there were maintenance concerns with the property. The tenant raised them repeatedly and nothing was done. I find the landlord has committed an unlawful act.

The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.

Taking the section 109 considerations into account, I conclude as follows:

The effect the landlord’s failure to act was that the tenant has been subject to living in a damp house with significant mould and fungus growth for a long time. She was at going risk of harm from the state of the bathroom floor, and was, in fact injured as a result of the state of the floor.

I consider the landlord must have acted intentionally in failing to repair this damage. While there was a short period of time that the landlord was not available due to covid, and again when she returned China due to a bereavement, arrangements should have been made for a colleague to look after the property in her absence, and the tenant informed of these arrangements and alternative contacts. The duration of the landlord’s failure to act is significant.

Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition.

I consider that an award of exemplary damages is appropriate in the case, and I award $2,500.00.

I further consider that compensation in the form a rent reduction is appropriate to reflect the loss of amenity suffered by the tenants. The landlord suggests that a rent reduction of around $50.00 per week would be appropriate. The landlord submits that that amount should only be awarded from the date in May 2023 when the plumber indicated that there were significant repairs required.

I do not agree with the start point suggested by the landlord. The landlord was on notice of the issues from, at the latest, 28 September 2022. Few or no steps were taken to address the issues. The damage was such that the tenancy was terminated for repairs to be completed. I consider that rent should be reduced from 28 September 2022 until the end of the tenancy. I adopt the landlord’s suggested rate of $50 per week. Accordingly, I award $2,050.00 in compensation.

For completeness, I have reduced the award for loss of amenity to reflect the exemplary damages awarded for failure to maintain, as there is an some cross-over between the two claims. Health Homes Standards

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.

Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.

The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.

The HHS does provide exemptions in specific circumstances.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).

Having viewed the HHS assessment for this property, it is clear that it does not comply with the requirement for a ground moisture barrier. The landlord accepts this is the case. By way of explanation, the landlord notes that the property owner has furniture stored under the house which stopped him installing the moisture barrier. I do not consider this meets the criteria for an exception to the HHS.

I find the landlord has committed an unlawful act.

As set out above, 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.

Taking the section 109 considerations into account, I conclude as follows:

The effect the landlord’s failure to act was that the tenant has been subject to living in a damp house with significant mould and fungus growth for a long time. While it is not clear whether the lack of moisture barrier directly contributed to this, all the requirements to prevent water ingress take on significance where there are moisture concerns within the property.

I consider the landlord must have acted intentionally in failing to repair this damage. The landlord as in receipt of the HHS assessment clearly stating that the moisture barrier was required. Other work was undertaken to ensure the house met the HHS standards, but this criterion was ignored, largely for convenience. The duration of the landlord’s failure to act is significant.

Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition. This was the purpose of the HHS and associated legislation, and the Tribunal should be seen to condone landlords simply ignoring their obligations.

I consider that an award of exemplary damages is appropriate in the case, and I award $1,000.00. Suppression

Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.

The tenant sought suppression of her name. As she has been substantially successful in her claim she is entitled to suppression. Filing Fee

Because [The tenant/s] has substantially succeeded with the claim I have ordered reimbursement of the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4565214 — net $5,570.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for loss of amenity	$2,050.00	Compensation for loss of amenity
Exemplary damages – failure to maintain	$2,500.00	Exemplary damages – failure to maintain
Exemplary damages – Breach HHS	$1,000.00	Exemplary damages – Breach HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,570.44
Total payable by Landlord to Tenant	$5,570.44