Published tribunal order
Tenancy Tribunal case 4565409 — Property damage at 135 Hull Road, Waiuku, Waiuku 2682
Decided 20 Jul 2023 · Published 20 Jul 2023 · Application 4565409
Tenant favoured
- Property damage
Order
- Counties Realty Limited trading as One Agency Counties as agent For Ayesha Kushling must pay Julius Vincent Love $8,770.44 immediately, calculated as shown in table below:
- The landlord must carry out the following work to the premises, which must be completed by 3 August 2023: a. Repair/replace the broken stovetop; b. Clean or repair the roof to ensure that potable water may be collected in the water tank; c. Repair/replace the heatpump; d. Clean the gutters.
- As an alternative to compliance with Order 2, the landlord must pay the tenant $10,000.00 immediately.
- If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $10,000.00. These costs may be set off against rent payable.
Reasons
- Only the tenant attended the hearing.
- The tenancy agreement was entered into between Julius Love as tenant and Counties Realty Limited trading as One Agency Counties as landlord.
- Phone calls to the landlord’s property manager Audrey Ashman indicates that One Agency Counties is still acting for the owner in their capacity as landlord. Rent is still being paid to and received by One Agency Counties on behalf of the landlord.
- Section 2 Residential Tenancies Act 1986 (‘RTA’) provides that in relation to any residential premises that are the subject of a tenancy agreement, “landlord” means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes an agent of a landlord.
- While Ms Ashman maintains that she does not have any right to make decisions for this property and that this matter should be addressed by the owner directly, I am satisfied that the landlord, including One Agency Counties has been properly served on the application and given notice of today’s hearing.
- As landlord, One Agency Counties remains liable to discharge their obligations under the tenancy agreement and the RTA to the tenant.
- I now address the tenant’s claim for compensation due to the landlord’s failure to attend to necessary repairs and maintenance, and for failure to provide a working heatpump, during the tenancy.
- The tenant claims that the landlord did not repair the stovetop which is cracked since the start of the tenancy, failed to ensure that the premises has potable water supply since the start of the tenancy and failed to provide a working heatpump since the start of the tenancy. The tenant wants the problems fixed.
- Under section 45(1)(a) - (ca) RTA, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Having heard from the tenant, I find the landlord has failed to comply with those obligations and I make an order for the landlord to carry out the work as set out above. See section 78(1)(e) Residential Tenancies Act 1986.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
Has the landlord discharged their obligation to repair and maintain the premises?
- The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (‘RTA’).
- Under section 45 RTA, a landlord must: i)provide and maintain the premises in a reasonable state of repair ii)comply with any relevant enactment in relation to buildings, health and safety
- In respect of relevant enactment in relation to buildings, health and safety, the Housing Improvement Regulations 1947 (SR 1947/200) (‘the HIR’) provide that every house “shall be free from dampness” (regulation 15). Regulation 6 provides that every living room shall be fitted with a fireplace and chimney or other approved form of heating.
- While there is a heatpump on the premises, it never worked. The landlord has not provided any other approved form of heating to the living room during the tenancy. The property is cold and damp.
- I award compensation of $3,500.00 against the landlord for breach of regulation 6 of the HIR calculated at the rate of $100.00 a week from 18/11/2022 to 20/07/2023.
- There are penalties under the Health Act 1956 for permitting or causing “nuisances”. Section 28 provides that a nuisance is deemed to be created in a number of circumstances, including where any premises are “...so situated, or are in such a state, as to be offensive or likely to be injurious to health”.
- In terms of maintenance, a landlord’s obligation is to investigate and repair a defect brought to its attention within a timeframe that is reasonable in the circumstances. What is a reasonable time, depends on the gravity of the problem and the objective evidence of the attempts made by the landlord to investigate and put right the problem (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)).
- The tenant has duly informed the landlord of the lack of heating, cold and damp conditions which caused the tenant pneumonia and the tank water not potable due to mouldy and/or unsuitable roofing for water collection. The tenant purchased his own heaters and a dehumidifier to try and keep warm and to get rid of excess moisture. The tenant is living at the property together with his young grandson. The tenant had to buy bottled water to drink.
- The landlord also failed to replace the cracked/damaged stovetop since the start of the tenancy. The tenant had to buy and use his own portable stove to cook. The gutters are clogged with plant life.
- It is appalling that the landlord, both Counties Realty Limited trading as One Agency Counties and the owner Ayesha Kushling, have ignored and continue to ignore the tenant’s complaints about the damp, moist and cold conditions suffered by the tenant and his grandkid and attend to stovetop repairs and gutter cleaning. The tenant says that he also incurred high heating and dehumidifying bills.
- The amount of damages ordered against the landlord for failing to investigate and repair defects brought to its attention within a reasonable timeframe are proved as set out above.
- Because Julius Vincent Love has wholly succeeded with the claim I must reimburse the filing fee.