What was Tenancy Tribunal case 4569038 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 4569038?

Compensation: Failure To Maintain: $525.00 awarded to tenant; Compensation: Overpayment Of Rent: $20.00 awarded to tenant; Compensation: Payment for painting w…: $1,090.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4569038?

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

Where can I read the official tribunal order for case 4569038?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9250191-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4569038 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 4569038?

Compensation: Failure To Maintain: $525.00 awarded to tenant; Compensation: Overpayment Of Rent: $20.00 awarded to tenant; Compensation: Payment for painting w…: $1,090.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4569038?

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

Where can I read the official tribunal order for case 4569038?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9250191-Tribunal_Order_Redacted.pdf.

Unit/Flat 1, 142 Heaphy Street, Te Awamutu, Te Awamutu Tenancy Tribunal Case 4569038 — Healthy homes

Claims and awards in Tenancy Tribunal application 4569038 — net $2,905.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Overpayment of rent	$20.00	Overpayment of rent
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Exemplary damages: Failure to include HHS compliance statements	$750.00	Failure to include HHS compliance statements
Compensation: Failure to maintain	$525.00	Failure to maintain
Compensation: Payment for painting work	$1,090.00	Payment for painting work
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,905.44
Total payable by Landlord to Tenant	$2,905.44

Claims and awards in Tenancy Tribunal application 4569038 — net $2,905.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Overpayment of rent	$20.00	Overpayment of rent
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Exemplary damages: Failure to include HHS compliance statements	$750.00	Failure to include HHS compliance statements
Compensation: Failure to maintain	$525.00	Failure to maintain
Compensation: Payment for painting work	$1,090.00	Payment for painting work
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,905.44
Total payable by Landlord to Tenant	$2,905.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
Rob Bidiscombe must pay [The tenant/s] $2,905.44 immediately, calculated as shown in table below:

Reasons

All named parties attended the hearing on 11 July 2023 by telephone.
Both parties requested to attend the hearing by telephone for their convenience. I approved this request on the condition that they submitted all evidence by dates that I set and had ready access to two forms of electronic device during the hearing. I have considered all written evidence provided by the parties as well as the oral evidence given during the hearing.
The tenants have made applications to the tribunal, saying that the landlord: a. Failed to refund their bond of $510.00; b. Failed to lodge the bond at the Bond Centre; c. Did not pay them for approximately 40 hours of painting work they did at the premises and which the landlord had agreed to pay them for; d. Breached Healthy Homes Standards, insulation and maintenance obligations and particularly; i. That there was no insulation; ii. No ventilation fan in the bathroom; iii. That nearly all of the windows were unable to be closed properly or secured because of broken or missing window latches; iv. Areas of the decking were rotten and could not be walked on; v. An area of the laundry floor was rotten and could not be walked on; vi. There were two or more holes in the guttering allowing water to pool on the ground; vii. There was no working oven for one week; viii. The fireplace was unable to be used. e. Failed to provide Healthy Homes Standards “forms” (compliance statements).
In general, the party that makes a claim has the task of proving that claim. When a tenant says that a landlord has not complied with their legal obligations, the tenant must provide enough evidence to show that this is probably the case. If there is enough evidence to raise this as a probability, then the landlord must prove that they did comply.
Compensation may be awarded to a non-breaching party to recover expenses or loss arising from the breach or as a lump sum or reduction of rent where, for example, the use of the premises has been affected. The Tribunal can recognise non-financial loss such as inconvenience and stress, where appropriate.
Exemplary damages are like a fine or a penalty and can only be awarded when a party has intentionally committed a breach specified as an “unlawful act” (these are listed in Schedule 1A RTA). The Tribunal must decide whether it is just to award these after considering the breaching party’s intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA. Background
The tenants moved into the premises on 12 March 2023 and moved out on 5 May 2023. They lived at the premises for 7 weeks and 6 days.
The weekly rent was $510.00.
The written tenancy agreement records that the tenancy started on 19 March 2023 and that a bond of $510.00 was required to be paid.
The landlord says that the tenants knew that the premises needed work done on it both for maintenance and to comply with the Healthy Homes Standards (“HHS”). 1 The tenants explained that they needed housing urgently so felt they had no real choice.
The tenants agreed with the landlord to do some interior painting and that he would compensate them for this. They did not agree on the amount or rate that they would be paid.

How much rent was due and how much have the tenants paid during the tenancy?

Neither party provided a rent ledger or record of rent payments prior to the hearing.
I allowed the tenants to provide evidence after the hearing to prove the payments they have made to the landlord. They supplied a record of account transactions. The landlord did not contest their evidence.
Both parties agree that the tenants did not give the landlord notice before they moved out. The legal requirement is that a tenant must give at least 28 days written notice to terminate a periodic tenancy. The landlord has not made a claim for rent in lieu of notice.
After reviewing all evidence, I am satisfied that:- a. The tenancy started on 12 March 2023. b. The tenants paid $510.00 on 14 March 2023 which the landlord recorded (in a text to the tenants) as: Bond $510 (week 12 th to 19 th rent) c. The landlord’s intention was that the week starting 12 March 2023 would be rent-free in part payment for interior painting work the tenants had agreed to do. He said he would refund the first week of rent paid ‘as in a bond’ to give effect to the week of free rent. d. The tenants made payments totalling $3,390.00 as recorded in my rent ledger below. 1 Residential Tenancies (Healthy Homes Standards) Regulations 2019. Rent dueRent period end Amount due Amount paid Date paidArrears/credit total
3.2318.3.23$0.00$510.0014.3.23+$510.00
3.2325.3.23$510.00$510.0020.3.23+$510.00
3.231.4.23$450.00*$450.0028.3.23+$510.00
4.238.4.23$370.00#$370.004.4.23+$510.00
4.2315.4.23$510.00$510.0012.4.23+$510.00
4.2322.4.23$510.00--$0.00
4.2329.4.23$510.00$510.0025.4.23$0.00
4.236.5.23$510.00$530.004.5.23+$20.00 Totals$3,370.00$3,390.00 * Landlord agreed that tenants may deduct $60.00 from the rent as reimbursement for tenant expenses for the house # Landlord agreed to tenants purchasing 2 curtain tracks and dining room and kitchen blinds and deducting these costs from the rent e. The landlord has not disputed that he agreed to the tenants paying reduced rent on the weeks of 26 March 2023 and 2 April 2023 as reimbursement for purchases they made for the premises (see the notes at * and #). f. My rent ledger shows that a total of $3,370.00 of rent was due during the tenancy from 12 March 2023 until 6 May 2023. This calculation allows for one week rent free at the start of the tenancy. The tenants have paid a total of $3,390.00 over that period – including the first payment of $510.00. g. The calculations above mean that the tenants are not owed the full $510.00 that they say they paid as a bond. The rent ledger shows that a rent payment was missed in mid-April 2023. The ledger proves that the landlord owes the tenants $20.00. I have ordered payment of this amount. Payment for painting work
The tenants estimate that they did 40 hours of painting work. They claim payment at $40.00 per hour.
The landlord agreed in the hearing that this is reasonable.
The intention was that the tenants receive one week of free rent as part payment for the painting work. I have taken this into account in the rent ledger above.
The landlord owes the tenants $1,090.00 for the painting work (calculated as below): 40 hours painting at $40.00 per hour$1,600.00 Less one week of free rent (allowed in rent ledger)- $510.00 Amount left for landlord to pay for painting$1,090.00 Failure to lodge the bond
The tenants say that the $510.00 that they paid for the first week of rent was a “bond” and that this should have been lodged at the Bond Centre.
The law says that a landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986 (RTA).
A “bond” is defined in the RTA as money paid as “security for the performance of the tenant’s obligations” but does not include any money paid as rent; s2 RTA.
The landlord readily accepts that he did not lodge the first payment of $510.00 received from the tenants at the Bond Centre. He says that although he refers to it in his text to the tenants as a ‘bond’, that what he meant by this was that he intended it to be paid back to the tenants as payment for their painting work.
In my view, the landlord should have lodged the money as a bond because that is what he called it in his text to the tenants and because the tenancy agreement states that a bond of $510.00 was to be paid. It is very important that bond money is lodged at the independent Bond Centre so that it is held securely and any dispute over it can be determined by the Tribunal.
The landlord’s act was intentional in the sense that he deliberately chose not to lodge the $510.00 at the Bond Centre.
I must now consider the factors in s109 RTA. a. The landlord’s intent was that he confused the concept of a ‘bond’ and the free week of rent he intended as part-payment for the tenants’ painting work; b. The effect of the money not being lodged is that the landlord retained control over it. He said that he intended to pay the $510.00 back to the tenants as part-payment for their painting work but he did not do so; c. The interests of the tenants are that any money paid as a bond should be secure at the Bond Centre; d. The public interest is that any money that is not rent is usually bond and must be lodged.
I do consider that it is just to award modest exemplary damages to signal to the landlord that he should take care to be clear when it comes to managing money paid by tenants. I award $500.00 which is one third of the maximum. Breach of Healthy Homes Standards and insulation and maintenance obligations
The tenants say that the premises did not comply with the Healthy Homes Standards (“HHS”), were not insulated, and that maintenance issues were not acted on in a timely manner.
A landlord has legal obligations under section 45 RTA to:- a. provide the premises in a reasonable state of cleanliness; b. provide and maintain the premises in a reasonable state of repair; c. comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016; d. comply with the Healthy Homes Standards (including insulation requirements); e. comply with any relevant enactment in relation to buildings, health and safety; and f. provide an adequate means for the collection and storage of water if there is no reticulated supply.
All of the above obligations apply even if a tenant knows the state of the premises at the time that the tenancy is entered into; see s45(3) RTA.
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.

Do the Healthy Homes Standards apply to this tenancy?

The HHS do not apply until after certain dates and the date is different depending on when the tenancy starts.
Where a new or renewed tenancy commences on a date on or between 28 August 2022 and 2 March 2025, the premises must comply within 120 days of the tenancy start date. 2
This tenancy started on 12 March 2023. The HHS compliance date is 120 days after that which is 10 July 2023. The tenancy ended before this date. This means that the HHS do not apply to this tenancy.

Did the premises have to be insulated?

The HHS for insulation did not apply to this tenancy because the landlord had 120 days to comply (see above). The HHS is that ceiling insulation must be at least R2.9 and underfloor at least R1.3. 3 The R-value measures insulation according to how well it resists heat flow.
However, even though the HHS did not apply, all residential premises have been required to have ceiling and underfloor insulation to a minimum standard since 1 July 2019. The exact standard required depends on when any insulation was first installed. For insulation installed before 1 July 2016, the R-value for timber-framed homes is R1.9 for ceiling and R 0.9 for underfloor insulation. The insulation must remain in reasonable condition with no major repairs. 4
There are exemptions that may apply such as, for example, where it is not reasonably practicable to install because the space is too small, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. 5 Decisions on maintenance, insulation, and HHS issues
The tenants have raised several specific issues. They say that they knew that the landlord was working on some of these when they moved in but that he did not make reasonable progress.
I do not accept the landlord’s statement that he could not contact the tenants to arrange a time to do the work. He provided no evidence to support what he said. I pointed out that he has legal rights of entry to attend to maintenance in s48 RTA so does not need to gain the consent of the tenants to do so. 2 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019. 3 Regulations 14 to 18, Residential Tenancies Healthy Homes Standards Regulations 2019. Ceiling insulation of R2.9 (zone 1 or 2), R3.3 (zone 3), installed in accordance with NZS 4246:2016 and at least 120mm thick. Underfloor insulation of R1.3. 4 Regulations 12 to 16, Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. 5 Regulations 18 to 21, Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Regulations 19 and 20, Residential Tenancies Healthy Homes Standards Regulations 2019.
In general terms, I agree that the 8-week term of the tenancy should have been long enough for the landlord to have repaired the issues raised by the tenants or made good progress towards them.
I list the specific issues below and my decisions on each:- a. That there was no insulation: the tenants say that there was no insulation in either the ceiling or under the floor of the premises. However, they did not provide photographs or any other evidence to substantiate this. This means that they have not proven their claim. The landlord did admit during the hearing that there was no underfloor insulation. He said that the ceiling was insulated although could not say when it was last inspected. However, the landlord’s admission is not the same as it being proven that the insulation regulations have been breached. 6 If the tenants had supplied photographs or other good evidence to verify their claim then the landlord would have had to prove compliance. They did not do so, and this claim is dismissed. b. That there was no ventilation fan in the bathroom: the HHS do not apply to the tenancy, so this is not a breach. c. Broken and missing window latches on nearly all windows: I find it probable that at least some of the windows could not be closed properly and were not fixed in a timely manner. This is a breach of the maintenance obligation because keeping draughts out and the premises secure is important. d. Rotten areas of decking which could not be walked on: The photographs satisfy me that areas of the deck were probably unsafe to be used for sitting outdoors during the tenancy. The area closest to the ranchslider could be used to enter the premises. This is a maintenance and contract breach because use of the deck was part of the tenancy contract. e. An area of the laundry floor was rotten and could not be walked on: this was not proven. f. Two or more holes in the guttering allowed water to pool on the ground: a photograph shows water pouring from one rusty hole in the guttering and forming a puddle immediately next to the house. This is a maintenance breach as the ground becomes soaked and can cause dampness in the house. g. There was no working oven for one week: it is not proven that this was not repaired within a reasonable timeframe. 6 As an example, it is possible that the underfloor is exempt from the insulation requirements. A photograph of the water pooling from the leaking gutter shows a low underfloor area which may mean that insulation is not reasonably practicable to install. h. The fireplace was unable to be used: there was a heatpump instead, so this is not a breach.
I do consider that compensation calculated as a reduction from weekly rent is reasonable. I assess a fair rent reduction as $75.00 per week for the missing window latches, inability to use all of the deck, and the gutter leaks. The tenants paid rent for 7 weeks, so this is total compensation of $525.00.
I do not award exemplary damages as the compensation is sufficient to recognise the detriment to the tenants. Failure to provide Healthy Homes Statement in the tenancy agreement
The tenants also say that the landlord did not provide “healthy homes forms”. I clarified with them at the start of the hearing that what they meant was that there was no information in the tenancy agreement about the HHS compliance.
The tenancy agreement entered into by the landlord and tenants is two pages long. It contains minimal information. For example, the landlord has not given a contact address, address for service, or even an email address. 7
It is a legal requirement to give a physical address for service and a contact address; s13A(1) and s13AB RTA. This is important so that tenants can formally communicate in writing with the landlord.
It is also a legal requirement that a tenancy agreement contain certain compliance information. Specifically:- a. an insulation statement of the location, type, condition and whether an exemption applies - required since 1 July 2016 (s13A(1A) RTA). This can now be combined with the HHS statement (see d, below), b. an insurance statement – required since 27 August 2019 (s13A(2) RTA), c. a statement regarding intent to comply with HHS - since 1 July 2019, and d. a separate statement which details the extent of compliance with each of the separate HH Standards - since 1 December 2020 (s13A(1CA) RTA).
This information is readily available to landlords, free of charge, on the Tenancy Services website or by phoning 0800 836 262. A full template tenancy agreement is also able to be downloaded.
In this case, the tenancy agreement does not contain any of the required compliance statements. The landlord has breached s13A(1A), s13A(2), s13A(1CA) RTA. 7 The address given as the landlord’s address for service on the tenancy agreement is the tenancy address.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages for each breach up to a maximum of $750.00. See section 13A(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord accepts that he has not included any of the compliance statements in the tenancy agreement. He said that this was because he knew that the house did not yet comply with the HHS.
This is not a reason to fail to include the compliance statements. I explained that the purpose of the statements is so that a tenant can clearly see and understand whether premises comply at the start of the tenancy or whether more work needs to be done.
It is quite possible that the landlord did not know that these compliance statements are now a compulsory part of every tenancy agreement. His previous tenant in this house had lived there for ten years. However, not knowing the law is not an excuse. If it was, then a landlord could simply say that they did not know.
I am satisfied that the landlord deliberately did not include the compliance statements in the tenancy agreement. This means that exemplary damages may be awarded.
I now consider the other factors in section 109 RTA:- a. I find it probable that the landlord did not intend to mislead the tenants. I accept his evidence that he was open with them that the house needed maintenance and HHS upgrades. b. The tenants’ interests are that the compliance statements are included and are complete so that it is clear what the compliance status of the property is. c. The effect of the breaches was that neither the landlord or the tenants were clear about the compliance date or the work that was required to be done. This resulted in uncertainty for the tenants and they decided to leave the premises. d. The public interest is that landlords who do not provide the required compliance statements are noted. These are not minor matters. Parliament has legislated to require minimum standards of insulation and the HHS, and these are only effective if the tenancy agreement is complete and accurate.
It is just to award exemplary damages. I consider this to be three breaches (as the insulation statement can be combined with the HHS compliance statement). I award a total of $750.00 which is equivalent to one-third of the maximum per breach. There is no indication the landlord has done this before, and he openly accepted the breach. Filing fee and suppression of names
The tenants have substantially succeeded with their claims. I award the filing fee and suppress their names from the published order.

Tenancy Tribunal case 4569038 — Healthy homes at Unit/Flat 1, 142 Heaphy Street, Te Awamutu, Te Awamutu

At a glance

Tenancy Tribunal case 4569038 — Healthy homes at Unit/Flat 1, 142 Heaphy Street, Te Awamutu, Te Awamutu

At a glance

Award balance

Claims & awards

Order

Reasons

How much rent was due and how much have the tenants paid during the tenancy?

Do the Healthy Homes Standards apply to this tenancy?

Did the premises have to be insulated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much rent was due and how much have the tenants paid during the tenancy?

Do the Healthy Homes Standards apply to this tenancy?

Did the premises have to be insulated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions