What was the outcome of Tenancy Tribunal case 4575871?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4575871?

Property Damage: $2,012.50 awarded to tenant; Compensation: shower at a week for 7…: $280.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $8,514.86 awarded to landlord

What type of tenancy dispute was case 4575871?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4575871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9455014-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4575871?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4575871?

Property Damage: $2,012.50 awarded to tenant; Compensation: shower at a week for 7…: $280.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $8,514.86 awarded to landlord

What type of tenancy dispute was case 4575871?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4575871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9455014-Tribunal_Order.pdf.

16 Homebush Road, Khandallah, Wellington 6035 Tenancy Tribunal Case 4575871 — Rent arrears

Claims and awards in Tenancy Tribunal application 4575871 — net $701.92 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 23/2/23 - 22/8/23	$8,514.86		Rent arrears from 23/2/23 - 22/8/23
Compensation: shower at a week for 7 weeks		$280.00	shower at a week for 7 weeks
Compensation: report and the cost of plumbing repairs		$2,012.50	report and the cost of plumbing repairs
Exemplary damages: duty to provide HHS information		$500.00	duty to provide HHS information
Exemplary damages: maintenance and HHS		$5,000.00	maintenance and HHS
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$8,514.86	$7,812.94
Net award	$701.92
Total payable by Tenant to Landlord	$701.92

Claims and awards in Tenancy Tribunal application 4575871 — net $701.92 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 23/2/23 - 22/8/23	$8,514.86		Rent arrears from 23/2/23 - 22/8/23
Compensation: shower at a week for 7 weeks		$280.00	shower at a week for 7 weeks
Compensation: report and the cost of plumbing repairs		$2,012.50	report and the cost of plumbing repairs
Exemplary damages: duty to provide HHS information		$500.00	duty to provide HHS information
Exemplary damages: maintenance and HHS		$5,000.00	maintenance and HHS
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$8,514.86	$7,812.94
Net award	$701.92
Total payable by Tenant to Landlord	$701.92

Order

No suppression orders apply around publication of this decision.
The Bond Centre is to pay the bond of $2,720.00 (3005069-020) immediately apportioned as follows and as set out in the table below: Sandra and Russell Walker: $701.92 Renee Gibbs: $2,018.08
All other claims are dismissed.

Reasons

Both parties attended the hearing. Mrs Walker represented the landlord.
This tenancy started after the tenant received a text message from Mr Walker inviting her to apply to rent the tenancy premises. The tenant and her dog were accepted, and the tenancy started on 23 February 2023. The tenancy premises consists of two buildings connected by a walkway covered with ClearLight. There was an open storage area downstairs which the tenant could use, and some locked storage that was excluded from the tenancy agreement and used by the landlord during the tenancy. The tenant had problems with maintenance soon after she moved in, and it became clear the house was not healthy homes compliant.
The tenant missed some of her rent payments and the landlord applied for termination of the tenancy. At the hearing held in July 2023 I found that the tenant was more than 21 days behind in rent. The tenant provided me with two reports written by a builder and a plumber stating the house needed serious work and was not safe. I was persuaded to make a conditional termination order and required the tenant to file a cross application. The tenant’s application includes claims for compensation and exemplary damages because of the state of the house, the lack of healthy homes compliance, and breach of quiet enjoyment.
The tenant did not pay all her rent as required under the conditional termination order and the tenancy ended on 22 August 2023 when the bailiff evicted the tenant. This means I do not need to decide the landlord’s application for termination. The landlord wants an order for rent arrears to the end of the tenancy and both parties want the bond. The questions I have to decide are: • Does the tenant owe rent? • Which of the tenant’s claims can be considered? • Did the tenant have killer dogs at the house? • Did the landlord breach the duty to maintain the tenancy premises? • Did the house meet the Healthy Homes Standards? • Should the tenant get exemplary damages? • Should the tenant get compensation for her damaged belongings? • Did the landlord provide the correct information in the tenancy agreement? • Did the landlord keep proper records and lodge the bond as required? • Did the landlord breach the tenant’s quiet enjoyment?

Does the tenant owe rent?

It is agreed evidence the tenant owes rent. The landlord did not provide an updated rent summary. I have calculated the rent owed based on the information provided by the parties in the hearing. This claim is allowed. Which of the tenant’s claims can be considered?
The tenant’s application was comprehensive. The claims for retaliatory notice and being given the wrong notice were not considered because no notices to terminate the tenancy were given to the tenant during the tenancy.
The claim for work orders was not considered because the tenancy ended before the second hearing. The claim for market rent was not considered because this was actually a claim for a rent reduction while maintenance was carried out, and the tenancy ended before the Tribunal could make the work orders.
The tenancy agreement included an insurance statement so this claim was not considered.
The interference with services claim related to the Wellington Water notified water leak and this claim was not considered because the water was never turned off.
The claim for breach of the duty to provide locks pursuant to section 46 Residential Tenancies Act 1986 (RTA) was not served on the landlord and was not considered.
The claim there was an unlawful entry was dismissed at the hearing. The storage room downstairs was clearly excluded from the tenancy in the tenancy agreement, and it could be accessed without going inside the house. I found that the landlord was allowed to access this room during the tenancy.
The rest of the tenant’s claims were considered.

Did the tenant have killer dogs at the house?

The tenant was allowed to have one dog at the house. She also looked after a friend’s dog. The tenant said this happened occasionally, but the landlord said the second dog was there all the time. The landlord described the second dog as a “killer dog”. The tenant denied there were dangerous dogs at the house.
The reason this is relevant is because the landlord’s defence to every claim by the tenant is that the landlord and tradespeople could not access the tenancy premises because of the killer dogs. The landlord produced copies of notices and communication asking that the killer dogs be secured. The landlord’s electrician has written a statement that confirms there was a “killer dog” in the house and the tenant only managed to secure him to a room when he visited in May. The landlord said the neighbours were also terrified of the dogs. However, there is no independent evidence that there were dangerous dogs at the house. The landlord did not manage to take a photo of the dogs during the tenancy, and there is no corroborating information from the Council or the neighbours. I am not persuaded there were dangerous dogs at the house during the tenancy.

Did the landlord breach the duty to maintain the tenancy premises?

The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (RTA). Under section 45 a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair. See section 45(1A) and Schedule 1A RTA.
The tenant said the house was not in a reasonable condition when she moved in. I only have some texts about the state of the house and no photos. The landlord said the house was in a reasonable condition and provided photos. This is the tenant’s claim to prove. I do not find she has proved this claim and it is dismissed.
In support of the maintenance and repair claim the tenant had two important pieces of supporting evidence. Shane Mather, a certified senior plumber and director of Piped Out Plumbing and Drainage Ltd, went to the house on 1 May and carried out repairs to fix “multiple” leaks, unblock the drain and clear the rear roof spouting which was causing leaks inside the house as well.
Mr Mather wrote a statement for the Tribunal after the tenant arranged for him to carry out repairs at the house. The statement is dated 1 July 2023 and lists the maintenance issues/safety concerns he identified as: • rotten walls from leaks, especially around the sinks, shower, and toilet • a severely compromised drainage system because of blocks and slow drainage • the lack of a proper shower because a garden hose was rigged to serve as a makeshift shower • the lack of a proper hot water supply • pipes chewed by rodents • all the above leading to an unsafe, unhygienic, unsuitable and unliveable house.
The second document is a “preliminary report” carried out by Linton Construction, Residential Construction and Contracting. This was done after an inspection on 7 July 2023. This report states: “...This property has not been maintained well and requires urgent attention to remediate some very obvious issues. There are significant issues to the property that put the inhabitants at real and genuine risk of undue harm to their physical health and wellbeing. The combination of the weathertightness issues and the outdated and deteriorated wiring is of grave concern...”
The other maintenance and repair issues identified by Linton Construction were: • the roof needs to be replaced • the guttering is lacking and plastic sheeting and tarpaulins have been used to divert water away from the property • there are holes in the ClearLight • a water tank above the house is persistently leaking • the shower and hot water cylinder are inadequate • there are problems with the inside plumbing and wastes • there are rotten weatherboards that need replacing to stop leaks, dampness and mould • the internal linings and carpet are in a poor condition • there is clear evidence of a rodent infestation • the black electrical rubber wiring, seen on the switchboard and at a light and wall point switches is a significant fire hazard and should be addressed immediately • the oven needs replacing • balustrades/fencing is needed around the deck.
I note that Mr Mather and the report writer from Linton Construction did not come to the hearing to give witness evidence.
The landlord submitted the plumber had a drug conviction is 2016 and his evidence should not be trusted. She also submitted that the house was in a good condition when the tenant moved in and the tenant deliberately caused all the damage noted in the Linton Construction report. I note the landlord was given copies of the Mather statement and the Linton Construction report at the first hearing in July 2023. The easiest way for the landlord to refute this information was to have her own building report done.
The landlord provided a statement from Mr Bauer who describes himself as a property manager. He stated that he received an enquiry from the tenant in response to an advertisement he placed. He said the information provided by the tenant was misleading. He said: “...I have a comprehensive understanding of the condition of the property ... having conducted numerous inspections over several years. As of my last inspection on February 15 th , 2023, the property, a mid-century style residence, was in good condition, clean, well maintained, with no outstanding repair or maintenance issues. The Walkers have been proactive in ensuring the property meets all regulatory requirements, including the installation of qualifying heating within the 90 day period. However, due to the current circumstances, securing a tradesperson willing to work on the property has proven to be a significant challenge...”
I am not persuaded by this statement. The advertisement is for a different address. The tenant did not respond to an advertisement – I have texts showing she was approached out of the blue by Mr Walker. The landlord did not provide a qualifying heater. These errors make me question whether Mr Bauer inspected the tenancy premises on 15 February 2023.
The landlord also provided a statement from her electrician, Mr Kapil. He said the wiring in the house is old (1950s) and needs to be replaced. He said the tenant cancelled one appointment for repairs on 15 April 2023. The second attempt at repairs happened on 6 May 2023. The shower and the hot water were checked and no faults were found. Repairs were made to the shower head and to the running water in the toilet. The back door was not fixed because the landlord said the missing bolt latch was “tenant abuse”. The leaking header tank was not fixed because the electrician refused to go back to the house without some indication from the tenant that the dogs would not be on the property. He also stated that “...the rewiring of this house will have to wait until she has vacated, as I cannot play her games, I am far too busy...”
I have considered the three statements and the report. I am more persuaded by the tenant’s evidence about repairs and maintenance because they focus on the house and the report has photos.
The tenant said she had problems with rats which chewed the oven and pipes. The landlord said the rats only came because of the mess from the dogs and there was no way they could destroy an oven. I am not more persuaded by the tenant’s evidence and this part of the claim is not proved. This means the claim for the pest control invoice is also dismissed, as is the claim for belongings damaged by rats.
The tenant has not proved the claim about the smoke alarms. There is conflicting verbal evidence but no supporting information.
The tenant has claimed compensation because she had no hot water to the shower for six weeks. This is a loss of amenity because the tenant was paying for a shower with hot water. The tenant has proved she asked for a repair on 17 March 2023 and there is evidence the repair was done on 1 May. I allow compensation in the amount of $40 a week for the seven weeks it took to get repairs completed. I note the weekly rent at this time was $680 and the tenant was paying rent.
The tenant submitted that a tap on an exterior wall by the toilet leaked from the day she moved in and this led to mould and water constantly running down the toilet wall on the inside. She said she verbally told the landlord about this. The landlord said the tenant did not tell her about this leak. I am more persuaded by the tenant’s submission here because the landlord was at the house with the electrician and the leak was visible. I find there was a breach of the duty to fix the leak.
The tenant said the exterior door on the central walkway under the ClearLight was rotten and could not be locked. The landlord did know about this and it was not fixed. I find the landlord should have repaired the door and secured the house for the tenant.
The tenant said there were problems with the wiring from the time she moved in. She said she got electric shocks in the shower and the heater sparked. The landlord and her electrician knew about this problem. I find there was a breach of the duty to repair.
The oven did not work and the tenant asked for repairs and sent a 14 day notice on 23 July 2023. The landlord said at the hearing that she believed the tenant deliberately damaged the oven. I am not persuaded by this evidence because the landlord never arranged for an independent repairer to look at the oven. I find there was a breach of the duty to repair.
I find the landlord failed to carry out repairs and maintenance. The landlord has committed an unlawful act.
The tenant paid a plumber to come and fix the shower, fix multiple leaks, unblock a drain and clear the rear spouting. I can see from the documents provided that the landlord knew about the issues but relied on the electrician who was working out of Wellington to return to the city and carry out repairs. I accept there was a delay and that the repairs were serious and urgent. The landlord’s email dated 27 April 2023 prohibiting the tenant from using her own tradespeople is a breach of the RTA. I find the tenant was allowed to engage a plumber and should be reimbursed. See section 45(1)(d) RTA.
The claim for compensation because the tenant bought curtains for the lounge and the bedroom is not allowed because landlords are not required to provide curtains, and it was up to the tenant to take her new curtains away at the end of the tenancy.
The tenant claimed more compensation than I have ordered for the maintenance and repair issues. However, I have to keep in mind that the tenant did not pay rent for half of the tenancy, so she has effectively already had compensation.

Did the house meet the Healthy Homes Standards?

The HHS compliance date for this tenancy was 26 June 2023, which is 120 days after the tenancy started. The tenant claims that the landlord breached the 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 failed to comply with the HHS heating standard. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. The tenant was provided with an electric infrared heater without a thermostat, and she stopped using it after the heater sparked. Because this was not a heat pump, it sems likely to me that it was not a ‘qualifying heater’, with the capacity to heat the room to 18 degrees Celsius.
The landlord was aware of the requirement to provide a qualifying heater but said that was not possible because the wiring needed to be updated first, and there were killer dogs at the premises, so it was not safe to install a heat pump. I find there was a breach of the duty to provide a heater that complied with the HHS.
The tenant considers the landlord failed to comply with the ventilation standard. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The tenant said there are no extractor fans in the house. She also said some of the windows are nailed shut so it is not possible to open windows in all of the rooms, such as in the lounge.
The landlord replied that she could not install extractor fans because the wiring needed to be upgraded first, and she could not get access because of the dogs. I find there was a breach of the HHS ventilation standard.
The tenant considers that the landlord failed to comply with the HHS moisture ingress and drainage standard. 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 tenant submitted that the gutters were old and ineffective and that there was a leak from a water tank on the roof. The external drain was overgrown and broken. The tenant said the house was damp and cold as a result. She provided me with photos showing condensation pooling on windowsills and said there was an excessive amount of condensation on the windows every day. She also said that water ran down the concrete walls in the toilet. I note these submissions are verified in the Mather statement and the and Linton Constriction report.
The landlord submitted that the moisture in the house was the result of the leaking pipe. She could not get to the house to repair the leak because of the dogs. She also said the tenant never reported an issue with the broken pipe to the external drain.
The landlord has a duty to check external drains, gutters and pipes are operating properly as part of the HHS compliance. I find there was a breach of the moisture ingress and drainage standard.
The tenant considers the landlord breached the duty to install insulation. She said the house was extremely cold and she did not think there was any insulation.
For private landlords, where the tenancy started after 1 July 2021, the HHS require R-2.9 for ceiling insulation in Wellington, and R-1.3 for underfloor insulation. The insulation must be in reasonable condition. There are exceptions to these requirements, for example, where it is impractical to install insulation.
The Linton Report states that the “house does not appear to have had any insulation and was extremely cold on arrival”.
The landlord submitted there is a concrete slab so underfloor insulation cannot be installed. She said that the ceiling space was insulated four years ago by a tenant and Mr Walker has checked and the insulation is still in a reasonable condition. She said the insulation is about 6 inches (152 mm) thick.
The information on the tenancy agreement is not reliable, because it is contradictory. There is a statement that there are “R16 pink batts” and “R18 pink batts”. It seems most likely this is a typing mistake, and the insulation is either R1.6 or R1.8. Either way, this information is not complete and R1.8 is not sufficient to comply with the newer HHS requirements. I find there was a breach of the insulation standard.
I find the landlord committed an unlawful act by not complying with the heating, ventilation, moisture and drainage and insulation standards.

Should the tenant get exemplary damages?

Exemplary damages up to a maximum of $7,200 can be awarded for breaching obligations to repair and maintain and meet the HHS. See 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 interest of the other party, and the public interest. See section 109(3) RTA.
None of the maintenance and repairs noted by the tenant were hidden defects. The photos show the roof, the gutters, the drains, the shower and the back door were all in a poor condition. The landlord knew about the need to replace the wiring before the tenancy started. The landlord was also fully aware of the HHS requirements. I find the landlord acted intentionally. The effect on the tenant was stress, unnecessary conflict with the landlord, poor health, and a loss of amenity, namely a warm and dry home. It is in tenants’ interests that landlords comply with the HHS and there is public interest in landlords being penalised when they breach the RTA.
Considering those factors, I have determined that the landlord pay exemplary damages in the amount of $5000. This would have been higher except I am not aware of any similar orders against the landlord.

Should the tenant get compensation for her damaged belongings?

The tenant said she had access to a concrete storage space under the house. There was no door so she erected a tarpaulin to protect her things as best she could. She has claimed compensation because there was damage to some of her belongings including furniture, a bed, linen and some clothing. I find the tenant stored these items at her own risk, and there was no legal requirement for the landlord to give advice about what could be safely stored there. This claim for compensation is dismissed.

Did the landlord provide the correct information in the tenancy agreement?

The tenant claims the landlord has not included HHS insulation details in the tenancy agreement. Under s 13A(1CA) RTA landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
The landlord did not include the commencement date in the agreement. The only HHS information in the agreement is about insulation and this is not conclusive. The landlord did not disclose that there is no heat pump and no extractor fans. The tenancy agreement does not include any of the required disclosure statements about complying with the HHS. I find the landlord committed an unlawful act. The same considerations for exemplary damages apply.
I find the landlord acted intentionally and acted to mislead the tenant. The effect on the tenant was that she could not make an informed decision about renting the house. It is in tenants’ interests that landlords are honest about their HHS compliance and there is public interest in exemplary damages being ordered when landlords ignore the law. I allow $500 in exemplary damages and I have taken the lack of similar orders into account. See section 109(3) RTA.

Did the landlord keep proper records and lodge the bond as required?

The claim there was a breach of the duty on receipt of the bond and the claim the landlord did not keep proper records during the tenancy is not proved. These claims relate to the landlord unilaterally allocating rent money to the bond and lodging it with the Bond Centre. This happened early in the tenancy and the landlord did not tell the tenant she had taken more than half the rent for that week and given it to the Bond Centre. The result was a shortfall of rent on paper, and the landlord issued 14 day notices for rent arrears. In fact, the tenant had fully paid all her rent at that time. This created friction between the parties. However, I cannot see that this was a breach of section 19 RTA, which sets out what the landlord’s obligations once a bond has been paid, or a breach of section 23 RTA, which sets out the rules for the payment of rent in advance. This claim is dismissed. Did the landlord breach the tenant’s quiet enjoyment?
The tenant claims the landlord harassed her. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant submitted that the landlord was at the house more than was necessary. She also said the landlord made her life difficult when she raised issues about the power, the rent and the bond, the repairs, and the leaks.
The landlord said she went there once with the electrician and once to access the storage room under the house. She refused to go back – or arrange for anyone else to go to the tenancy premises - because of the dogs.
I am not persuaded there was a breach of quiet enjoyment. I accept that living there was frustrating for both parties, but most of that arose because of the lack of maintenance and HHS compliance. I have already allowed exemplary damages and compensation for these issues. The claim for a breach of quiet enjoyment is dismissed. Other orders
The request for the refund of the bond has been sent to the Bond Centre.
I find the landlord should reimburse the filing fee because the tenant has substantially succeeded with her many claims against the landlord, including claims for exemplary damages.
The tenant did not make an application for suppression. The landlord’s application for suppression is not allowed. There is public interest in landlords who are ordered to pay exemplary damages being named. There is also public interest in the tenancy premises being identified to warn prospective tenants.

Tenancy Tribunal case 4575871 — Rent arrears at 16 Homebush Road, Khandallah, Wellington 6035

At a glance

Tenancy Tribunal case 4575871 — Rent arrears at 16 Homebush Road, Khandallah, Wellington 6035

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the tenant owe rent?

Did the tenant have killer dogs at the house?

Did the landlord breach the duty to maintain the tenancy premises?

Did the house meet the Healthy Homes Standards?

Should the tenant get exemplary damages?

Should the tenant get compensation for her damaged belongings?

Did the landlord provide the correct information in the tenancy agreement?

Did the landlord keep proper records and lodge the bond as required?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the tenant owe rent?

Did the tenant have killer dogs at the house?

Did the landlord breach the duty to maintain the tenancy premises?

Did the house meet the Healthy Homes Standards?

Should the tenant get exemplary damages?

Should the tenant get compensation for her damaged belongings?

Did the landlord provide the correct information in the tenancy agreement?

Did the landlord keep proper records and lodge the bond as required?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions