What was the outcome of Tenancy Tribunal case 4585089?

The tribunal order states: Alexandra Shirley Winter-Billington, Sheamus Dobson and Tyler Walbran must

How much money was awarded in case 4585089?

Compensation: Failing To Maintain: $6,800.00 awarded to tenant; Compensation: Lawns: $650.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Reduction Of Rent While Landlord In…: $4,600.00 awarded to tenant; Rent Arrears: $20,170.00 awarded to landlord

What type of tenancy dispute was case 4585089?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4585089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10210653-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4585089?

The tribunal order states: Alexandra Shirley Winter-Billington, Sheamus Dobson and Tyler Walbran must

How much money was awarded in case 4585089?

Compensation: Failing To Maintain: $6,800.00 awarded to tenant; Compensation: Lawns: $650.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Reduction Of Rent While Landlord In…: $4,600.00 awarded to tenant; Rent Arrears: $20,170.00 awarded to landlord

What type of tenancy dispute was case 4585089?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4585089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10210653-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 153 Owen Street, Newtown, Wellington 6021 Tenancy Tribunal Case 4585089 — Rent arrears

Claims and awards in Tenancy Tribunal application 4585089 — net $3,012.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 29.9.23	$20,170.00		Rent arrears to 29.9.23
Reduction of rent while Landlord in possession and		$4,600.00	Reduction of rent while Landlord in possession and
Compensation: failing to maintain		$6,800.00	failing to maintain
Compensation: lawns		$650.00	lawns
Exemplary damages: failing to maintain		$2,400.00	failing to maintain
Bond held by landlord		$2,708.00	Bond held by landlord
Total award	$20,170.00	$17,158.00
Net award	$3,012.00
Total payable by Tenant to Landlord	$3,012.00

Claims and awards in Tenancy Tribunal application 4585089 — net $3,012.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 29.9.23	$20,170.00		Rent arrears to 29.9.23
Reduction of rent while Landlord in possession and		$4,600.00	Reduction of rent while Landlord in possession and
Compensation: failing to maintain		$6,800.00	failing to maintain
Compensation: lawns		$650.00	lawns
Exemplary damages: failing to maintain		$2,400.00	failing to maintain
Bond held by landlord		$2,708.00	Bond held by landlord
Total award	$20,170.00	$17,158.00
Net award	$3,012.00
Total payable by Tenant to Landlord	$3,012.00

Order

Alexandra Shirley Winter-Billington, Sheamus Dobson and Tyler Walbran must pay Integrated Property Services Limited $3,012.00 immediately, calculated as shown in the table below.
The following claims are withdrawn by the tenants: Failure by landlord to sign the tenancy agreement and provide a copy of the tenancy agreement; Failure to include the date of the tenancy agreement and commencement date of the tenancy.
The following claims are dismissed: Reduction of the fixed term tenancy; Failure to lodge the bond; Failure to provide information in the tenancy agreement regarding insurance and chattels; Incorrect notice of rent increase; Removal and disposal of tenant’s property without permission.

Reasons

Both parties attended the hearing. Mr Wheatley represented the landlord. The tenants were represented by Ms Winter-Billington. The hearing took place over 2 days on 17 October 2023 and 21 February 2024.
The owner, Mr Williamson, attended the hearing as a witness. Two former tenants, Ms Franklin and Mr O’Meara, also attended as witnesses along with Mr Billington, the father of Ms Winter-Billington, who had visited the premises during the tenancy.
Ms Winter-Billington has lived at the premises since October 2019. However, the tenancy agreement she signed along with others, not joined as parties, began on 15 February 2020 for a fixed term ending on 12 February 2021. Subsequently, the fixed term tenancy was extended several times with the last extension signed by Ms Winter-Billington, Mr Dobson and Mr Walbran for the period starting 11 February 2023 and to end on 9 February 2024.
The tenants seek reduction of the fixed term tenancy on the basis that the premises were unhealthy and unsafe due to a lack of maintenance. They also seek compensation of $34,024 and exemplary damages for the following breaches of the Residential Tenancies Act 1986 (RTA): a. Failing to maintain the premises in a reasonable state of repair; b. Failing to maintain the premises in compliance with building, health and safety requirements; c. Non-lodgement of the bond; d. Failure to provide information in the tenancy agreement regarding chattels provided and landlord insurance cover; e. Incorrect notice of rent increase; f. Removal of tenants’ property without permission
The landlord has filed a cross application for rent arrears. Background
The premises are a large residence with the original building likely constructed circa 1900s. It comprises five bedrooms (one which was left as a spare room and not used as a bedroom by the tenants) a sunroom (used as a bedroom), one large and one small bathroom; a large living room; a separate dining room and kitchen; an outside sunroom, a porch/sunroom entrance area; and an outside shed housing the laundry.
Ms Winter-Billing became the unofficial head tenant in 2021. She says the turnover of tenants and flatmates was high due mainly to people being dissatisfied with the condition of the house and the tenancy became her responsibility by default. Mr Wheatley understood that the high turnover at that time was due to personality issues, not the condition of the premises. He and Ms Winter-Billington mutually agreed to her becoming the head tenant so that she could choose co-tenants. This was on the condition that any proposed tenant completed an application for the landlord’s approval first. Mr Wheatley says that applications were often not filled out before tenants moved in. He says he often turned up for inspections to find new tenants living there. Sometimes, applications were only completed when the tenancy was up for re-signing.
There were many times when Ms Winter-Billington says she struggled to fill some of the rooms in the property. Many of the occupants over the years did not sign a tenancy agreement.
Over the years, the tenants raised maintenance issues with the landlord regarding general damp, mould and rot on wooden window frames and sills; mould and rot embedded in timber surfaces; leaking windows and roof, gaps between walls and floors, soft floorboards that occasionally broke when stepped on; active borer and other miscellaneous issues. While the landlord conducted regular quarterly inspections over the years and was generally responsive to issues raised, the tenants say that the repairs and maintenance work conducted by the landlord were often inadequate; did not address the cause of the problems and were not done in a timely manner.
Matters came to a head in early April 2023, when a flatmate (who never signed a tenancy agreement) was moving into the sunroom off the lounge (referred to as bedroom1). She started to repaint her room to improve it and discovered the window frames were rotten and mouldy. She also noticed that the living room and the bedroom smelt badly of mould. She was so disturbed by this that she left the premises and never returned, leaving behind some of her possessions that she had brought to the house. In a text message to Ms Winter-Billington on 10 April 2023, she wrote: “I can’t live in that room and am leaving the flat. The leftmost window frame in my room is completely rotten, damp and filled with black mould........I just can’t bring myself to properly move in. Some of the furniture that was in the room has mould growing in it and the corner beneath the mouldy crack looks like it might leak in heavy storms... the mould issue was way worse than I noticed at the viewing....I don’t think anyone should be sleeping in that room and would urge the landlord to take action.....there’s a musty smell and mould in the living room too....”
Not long after this, the tenants decided that they could no longer put up with the state of disrepair at the house. It became obvious to them that past remedial work was inadequate, and the landlord was not taking steps to deal with the root cause of the problems which simply kept recurring and getting worse. In early May 2023, they asked to end the tenancy early and they vacated the premises on 26 June 2023.
Attempts to negotiate an agreement to end the fixed term tenancy early by consent failed. Ms Winter-Billington also made proposals for continuing the tenancy provided the landlord completed certain renovations to the property, but they could not agree the terms. Therefore, the tenants left the premises without the landlord’s consent and handed their keys to the landlord when they vacated. When the landlord sought permission to show prospective tenants through the property before the tenants left, Ms Winter-Billington did not give permission. However, she did agree to the landlord’s request to show the premises to a real estate agent for potential sale, which was an option the owners were considering. When Mr Wheatley asked whether the tenants were happy for the landlord to show prospective tenants through the property once they left, Ms Winter Billington replied by email on 26 May 2023: “I am not comfortable for you to show the property to prospective tenants when we leave because I don’t think you should be renting to anyone until the work has been done to make it safe and healthy. But as far as I’m concerned our tenancy ends on June 16 so its not up to me.”
The landlord decided to market the premises for sale. On taking possession of the premises, they completed some maintenance work; staged the property; took photos; started a sales and marketing campaign and held several open homes. The premises were sold with settlement taking place on 29 September 2023. The landlord seeks rent from the tenants to that date. Rent arrears
The landlord provided a rent summary which proves the arrears owed to 29 September 2023. Because they signed a fixed term tenancy, the tenants are liable for rent until the end of the term and it was not open to them to stop paying rent and end the tenancy early without the landlord’s consent or a Tribunal order. In those circumstances, I am satisfied that the tenants are liable for rent until the date the landlord settled the sale of the premises on 29 September 2023. I consider the tenant’s claims and whether they have proved them to offset the arrears owed, and whether there are grounds for reducing the term of the tenancy for which rent is payable. Burden of proof
The tenants have the task of proving their claim on the “balance of probabilities.” This means that they must persuade me with relevant evidence that what they claim is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not. In deciding any claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.
Both parties presented a wealth of documentary and oral evidence over the course of the two hearings. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Has the landlord failed to maintain the premises?

I am satisfied that the tenancy agreement between the parties was signed prior to 1 July 2021 and was subsequently extended. Therefore, the landlord was not required to comply with the Healthy Homes Standards under s45(1)(bb) RTA until 1 July 2025, after the tenancy ended. However, compliance with other obligations in s45 apply to the tenancy.
Under s45(1)(b) RTA, the landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises, and the period during which the premises are likely to remain habitable and available for residential purposes. In addition, under s45(1)(c) RTA, the landlord must comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises. Two basic requirements in respect of buildings, health and safety can be found in the Housing Improvement Regulations 1947. Rule 15 states that: “Every house shall be free from dampness.” Rule 17 requires every house to be “weatherproof.”
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 s45(1A) and Schedule 1A RTA.
It is well settled that, the landlord’s obligation under s 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under s40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so. Tenant case
Ms Winter-Billington says there was damp and mould throughout the house during her entire tenancy and in respect of each room her evidence of outstanding maintenance may be summarised as follows: a. Living room: Dripping roof leak that recurred every 6 months or so which the landlord addressed by clearing the roof of leaf litter each time; black mould appeared on the walls regularly and would then grow back after cleaning; the wooden frame around the small window had flaked away and was swollen and mouldy; the wooden frame around the main window was embedded with rot and mould; when the landlord painted over the living room window frames and sills in May 2023 the windows continued to leak; one of the windows did not fit the frame letting in cold air; the floorboards broke several times because of bora and deteriorating piles; b. Bedroom1/sunroom off the living room: Rot in the ceiling/wall in one corner which lead to the landlord replacing part of the wall in May 2023; rotten and mouldy window frames leading to the landlord ordering a replacement window sash in April 2023 (fitted later in July 2023) and painting the windowsills and frames in the room in May 2023; hole between skirting and floor in one corner; cracks in ceiling; c. Bedroom 2: Gap between the floor and the wall due to subsidence of foundations which was a source of cold damp air from under the house; a crack in the corner skirting; stained and cracked ceiling; Window frames and sills were painted after the tenants vacated; d. Bedroom 3: Gap between the floor and the wall due to subsidence of foundations which was a source of cold damp air from under the house; paint lifting on window frames resulting in rot/mould/damp in the wood; window frame infested with active borer and disintegrating from rot; mould found on furniture and belongings; mould found on carpet under bed; In May 2020 the ceiling was covered in mould and the landlord painted the ceiling after a tenant moved out. However, the mould returned to walls and carpet within months. The disintegrating window frame was not treated or painted in May 2020 and condensation and rainwater continued to soak into the wood; Skirting board was refitted in May 2023; a new window sash was ordered in April 2023 (fitted later in July 2023) to replace a rotten window frame, and window frames and sills were painted after the tenants vacated; e. Bedroom 4: Gap between the floor and the wall due to subsidence of foundations which was a source of cold damp air from under the house; paint lifting on window frames resulting in rot/mould/damp in the wood; mould found on furniture and belongings; In May 2021, the room was badly covered in mould and after the tenant moved out the landlord repainted the walls and ceiling and replaced the curtains and lampshades. The window frames and gap between wall and floor were not addressed. Mould kept returning; Skirting board was refitted in May 2023; Window frames and sill were painted after tenants vacated. f. Bedroom 5: Cracks in ceiling and walls; moss growing between windowpanes; rot and mould embedded in window frames; mould growing on carpet on occasion. Window frames and sill were painted after tenants vacated; g. Spare bedroom (next to small bathroom): Cold, damp, and mouldy; window did not close; stained walls and ceiling; paint flaking off wooden window frame and wood swollen so that window didn’t fit frame; Room not used at all because not a nice space; h. Kitchen: Damp rotten kitchen tiles since 2021; no pantry door fitted; leaking fridge; i. Small bathroom: Toilet cistern embedded with mould; rotten wood at front of shower floor; hole through wood surround at front of shower; j. Large bathroom: Rotten wood behind vanity and rotten wall beside bath; broken window frame; mould embedded in wooden wall behind toilet cistern and in cupboard; borer dust; k. Outdoor laundry shed; Disintegrating pergola frame with missing beams and nails protruding; Shed badly dilapidated inside with window frames and walls rotting; l. Inside sunroom/porch entry: Rotting and mouldy door and window frames with paint flaking off; moss growth inside; plant creepers growing through gaps in wall and door. Loose tiles on floor with mould underneath; m. Lawns were not mowed for 6 months for which the landlord was responsible under the terms of the tenancy agreement; n. Motion sensor light at the front of the house stopped working and exterior steps required painting to make them visible at night. Repeated requests were made to fix these issues; o. House was thoroughly infested with borer which compromised the integrity of the floorboards, particularly in the living room. It was also evident that piles needed replacement as floors throughout the property were spongey and there were holes in floors and gaps between floors and walls because of subsidence. The tenants had notified the landlord of active borer and asked for it to be treated in an email dated 11 December 2020.
Ms Winter-Billington was unable to provide many photos of the problems at the time they occurred during the tenancy. She relies on numerous photos and videos taken of the premises at the end of the tenancy and argues that the condition shown is proof of neglect over a prolonged period. She was also unable to prove that she notified the landlord in writing about everything she raised at the hearing. However, she relies on the fact that Mr Wheatley conducted regular quarterly inspections of the premises at which she was almost always present. She also says that he took photos at these inspections. She says she advised him of the problems face to face, and the issues she raised would have been obvious to the landlord at those many inspections. She produced copies of some inspection reports completed by the landlord in 2021 and 2022. They record some problems she raised which were not addressed during the tenancy: e.g. the outside lights, borer treatment; a hole in the skirting under bath, the mouldy toilet cistern; painting windows in bedroom 5. Notably, the landlord did not produce any of their inspection reports or accompanying photos prepared during the tenancy.
Ms Winter-Billington referred to an email dated 23 December 2021 to the landlord in which she highlighted a list of repairs that the tenants had asked the landlord to fix but which had not been done. It reads: “Things that we have asked to have done that have not been done: •Sealing the bedroom and living room windows so they don’t leak •Sealing the gap between the floor and walls in Hannah’s and Harry’s bedrooms that go straight under the house •Fixing the holes in the kitchen and bathroom that were made by rats and go straight under the house •Fix the motion detector lights at the front of the house •Repaint the edge of the steps into the house to make them visible at night •6 months of lawn mowing •Fix the leak in my bedroom •Replace dodgy wood in the living room floor •Borer bomb •Fix the spare bedroom window .......It does not seem reasonable to be expected to fill rooms and pay rent fully when prospective tenants are rejecting the run-down and in some cases unhealthy state of the rooms, which it seems the owners are disinclined to remedy........the rent was raised $75 per week two years ago, and it is now proposed to be raised again, and yet, there has been no upgrading of the property, and none of the costs incurred by the owners could be described as anything but the most minimal maintenance........I would like the owners to reconsider the fairness of a rent increase in the absence of even a proper level and standard of property maintenance. I would also very much appreciate the owners looking to address the outstanding maintenance issues I have referred to above....” The landlord replied on 24 December 2021: “...we will look to fix the items you have mentioned in the new year if you look to stay on at the property.....”
The landlord’s records of maintenance and invoices, together with emails exchanged at the relevant time, show that none of the above maintenance work was looked at until May 2022 after the tenants followed up and asked for issues to be addressed. Not all issues on the list were remedied. For example, nothing was done to treat the borer or fix the outside light. While draught stopping windows was done by August 2022, the tenant says the landlord did not address the existing state of the window frames and sills and nor were gaps between the floors and walls remedied. The tenants continued to advise the landlord of further leaking which occurred in the living room and through the bedroom windows on the west side of the house in June 2022.
In relation to borer, the tenants had been asking for it to be treated since December 2020. A contractor inspected the borer sometime in January 2021 and thought treatment was not required. However, the landlord advised in an email to the tenants on 26 January 2021 that the owner agreed to arrange further treatment and they were waiting for a quote. There is no evidence that anything further was done. The tenants again complained about active borer and added it to their list of issues emailed to the landlord on 23 December 2021. In May 2022, a contractor came to look at the borer and prepare a quote. By email dated 5 August 2022, Ms Winter-Billington asked the landlord: “...And the borer; the guy told me its rife and will get into our furniture. Are you planning to sort that out?” Borer treatment was not addressed until 2 March 2023 following service of a 14-day notice.
On 3 February 2023, the tenants issued a 14-day breach notice requiring the landlord to treat for borer; fix the kitchen pantry door; fix the hole in the living room floor (which had occurred a few weeks earlier and had been notified to the landlord);and repair the exterior safety light. The landlord then dealt with the matters. The tenants did not issue 14-day notices for other serious issues raised. Ms Winter-Billington explained that the process was stressful, and she received advice to tackle matters in small bites.
On 13 May 2023, the tenants met with Mr Wheatley and the property owner, Mr Williamson, to show them issues that were still outstanding and which had led the tenants to request early termination of the tenancy. Ms Winter-Billington says that the issues she pointed out were not new and were things they had been asking to have remedied for a long time. In particular, she maintained that many of the window frames and sills were rotten, embedded with mould and required replacement. The landlord agreed that two window sashes in bedrooms 1 and 3 were rotten and they arranged to have replacements made. They also replaced part of the wall that was rotted in bedroom 1, refitted skirtings in bedrooms 3 and 4 and scraped, sanded, and repainted window frames and sills in bedroom 1 and the living room.
Ms Winter-Billington’s witnesses all confirmed her evidence regarding the condition of the house. Former tenants, Ms Franklin and Mr O’Meara, also both confirmed that the bedrooms they occupied (bedrooms 2 and 4) were damp, cold, had gaps in the floor, subsiding floors, and were run-down and neglected. Both gave evidence that they became ill with cough and cold symptoms which they attribute to the state of the premises, although they did not report this to the landlord.
In summary, Ms Winter-Billington says that the house was not in a reasonable state. Therefore, it was hard to fill the rooms. She was spending many hours liaising with Mr Wheatley for maintenance which was time consuming and disruptive. Mr Wheatley inspected every quarter (more or less) and she spoke to him regularly about the same issues. While the landlord would agree to add maintenance items to “the list” some issues were either not addressed; or were not addressed in a reasonable time; or some repairs completed by the landlord were not long-lasting or sufficient to address the root cause of the problems. Issues came to a head and the tenants decided to leave the premises.
Ms Winter-Billington also provided evidence that on the morning of the second hearing day (21 February 2024) she visited the premises and saw the work being carried out by the new owners. This included: re-piling; gutting the premises by removing all interior walls and installing new posts. She says this is evidence that the building was not in a sound state when the tenancy ended. Landlord case
The landlord provided evidence that they carried out a large amount of maintenance over the years and produced a huge bundle of invoices for various work done since 2009. Notably, they did not produce any inspection reports completed or photos taken during the tenancy despite the landlord inspecting the premises every 3 months or so.
The landlord acknowledged that floorboards in the living room broke as the floor had borer and the property was in need of re-piling. The landlord provided evidence that borer treatment had been completed in September 2018, and the contractors had given a 10-year warranty. They then spent some time attempting to have the contractor honour the warranty. However, nothing was done to treat the borer until March 2023 after service of the 14-day notice. (See also the evidence outlined in paragraph 25 above.)
The landlord responded to the 14-day notice by fixing the items listed. Most items were fixed within 14 days, except the borer which was completed in early March 2023.
The landlord acknowledged that they could have done more to help the tenants mow the lawns when the contractor they engaged could no longer do the work and they accept the lawns were not mowed for 6 months.
The landlord’s evidence (including evidence from their builder) is that while there were two rotten window sashes that needed to be replaced in April 2023, it is their opinion that other windows in the house did not need replacing but were in need of maintenance (i.e. a scrape, sand and repaint.) Apart from some mould found in bedrooms that was treated and painted in 2020 and 2021, the landlord said that he and his handy man did not observe any mould on areas recurring after painting was done. No photos were provided of clothing and furniture allegedly damaged by mould during the tenancy, although the landlord’s handy man observed a light dusting of green mould on the back of some MDF furniture in one of the bedrooms in April 2023. The landlord said that the tenants confirmed that clothing covered in mould had been left by them in a pile on the floor for some time.
In April/May 2023, the landlord carried out work in the sunroom/bedroom1 and bedrooms 3 and 4 and living room as noted in paragraph 27 above. After the tenants vacated, they scraped, sanded, and painted other window frames and sills throughout the premises.
The landlord acknowledged that the roof leaked occasionally but provided evidence from their builder that this was because the rain heads in the area were being blocked by leaf matter. Therefore, they contend it is a maintenance issue, rather than a roof defect and the tenant only needed to let the landlord know if the gutter required clearing.
The landlord says the kitchen floor showed some signs of residual water damage as cork tiles were marked and warped, likely from a previous leak. However, he maintained the floor was otherwise sound and did not need to be replaced.
The landlord referred to a building inspection report commissioned from Pro Check Building Consultants Limited prepared after an inspection on 26 June 2023 and after the tenants vacated the premises (“the building report”). The landlord says the building report supports his view of the kitchen floor as it found the moisture readings in this area were acceptable. However, the building report says on page 30: “The dining/kitchen area also requires further maintenance and repairs, with peeling paint and general blemishes ....the flooring requires work as does the foundation beneath. Doors are out of alignment and require maintenance as well....acceptable moisture readings for internal linings.”
The landlord acknowledged that the outdoor shed used as a laundry was not in good condition and that they had advised the tenants that if it needs to be done, it will be done. The building report clearly states it should be removed and replaced.
The landlord acknowledged that the second bathroom floor outside the shower was wet, and the building report recorded high moisture content in the room and that the room would benefit from being “prepped, sealed and painted.” The building report also recorded “undulations and bounce to the floor area as well as decay around the shower base...upper walls presented with acceptable indicative moisture readings for internal linings. The floor is saturated...The shower may be leaking although this was not observed today. The vanity requires work or replacement....”
Mould on the toilet cistern was also acknowledged by the landlord which their plumber explained was to do with temperature. The water going into the cistern is cold and the temperature in the cistern space is higher, like condensation on windows.
The owner of the premises, Mr Williamson, gave evidence regarding minor and major repairs conducted since purchasing the property in 2007. He stated that he is not aware of ever declining a request for maintenance from the tenants. The exception to this is the request from Ms Winter-Billington in May 2023 to replace several windows. He authorised replacement of two windows which were rotted and needed replacement and refurbishment of any other windows that needed work. He says a registered tradesperson advised that refurbishment would address the tenants’ concerns about mould. He also confirmed his agreement to fix problems including repairing the gap in the bedroom1/sunroom wall; borer treatment; replacing fridge if required; clearing roof gutters; attending to the floor in the back bathroom; and repairing the outdoor shed if requested. He also arranged for the building report with a specific instruction that moisture readings be taken to check for dampness.
Mr Williamson denies that the state of the house was such that the new owners intended to condemn it. He also denied that the reason for selling the property was because the cost of maintenance and repairs required would not be economic. He said that the early end of this tenancy had caused financial pressure and the dispute was stressful which led to the sale decision.
The landlord also maintained that the renovation work being conducted by the new owners and observed by Ms Winter-Billington on the day of the second heraing does not necessarily indicate that the building was unsound. The landlords were aware that the new owners obtained consent to re-pile. They say that the extent of the work being done is not relevant because they do not know the new owners’ intentions nor the reasons behind their renovation decisions.
Mr Williamson says that he took maintenance obligations seriously and he understood that the tenants were satisfied with the repairs. Their desire to stay on in the property when the lease was renewed indicated a general acceptance of the condition of the property and the landlord’s approach to maintenance. He commented further at the hearing that the property, when he visited in May 2023 “felt like it always has. It is what it is, a perfectly good rental.”
The landlord argues that the building report supports a finding that the premises were not subject to mould and damp because all the moisture readings (except the second bathroom) were acceptable. Discussion and findings
I find on the evidence that the tenants notified the landlord of the various maintenance issues at the property which Ms Winter-Billington has raised in her application. The email list provided on 23 December 2021 and subsequent emails are compelling evidence in that regard. I find it highly likely that Ms Winter-Billington told Mr Wheatley about issues of concern on a regular basis given that he conducted quarterly inspections most of the time. Therefore, the tenants have discharged their obligation to notify the landlord of any maintenance and repair defects at the property. Furthermore, the landlord should have been on notice of issues given the number of inspections completed. This is an older building with obvious signs of disrepair that a vigilant landlord should check as part of a regular inspection and maintenance programme.
The next issue to determine is whether there were defects and, if so, whether the landlord investigated and repaired the defects in a reasonable time.
The evidence shows that the landlord addressed many repairs and maintenance issues over the course of the tenancy. However, there were defects with the premises which were not addressed in a reasonable timeframe or not addressed at all.
The email evidence highlights that after the tenant notified the landlord of the list of issues on 23 December 2021, no work to address those specific matters was looked at until May 2022.
The most serious concerns raised were of damp, mould and rot in window frames/sashes and sills and in areas of both bathrooms, with the tenants claiming that the mould was embedded such that the items must be replaced not refurbished. Connected to that issue is the complaint of gaps between floors and walls allowing cold air into the house which would exacerbate damp and mould. The condition of the flooring in the kitchen and the living room, and active borer was also a serious concern. It is also clear that re-piling was needed.
The photos and video footage supplied by Ms Winter-Billington taken in May 2023 shows that the above areas were indeed in a run-down state of disrepair, with flaking paint exposing the wood beneath and mould does appear to be embedded in surfaces. Many areas appear rotten with wooden surfaces soft and easily disintegrating in places. Gaps are obvious between walls and floors.
Two window sashes were rotten and had to be replaced. Rotting of windows happens over an extended period. This should have been picked up by the landlord over the course of regular inspections. I find these areas have not been maintained and have been neglected over a long period.
I cannot determine whether other timber surfaces should be replaced to address rot and mould or can be refurbished. Regardless of the appropriate remedy, considerable maintenance was required. The building report concludes in respect of every room in the house that the timber joinery would benefit from maintenance (i.e. being prepped, sealed, and repainted). The report also records warped window joinery; decay in areas of the front porch; that the porch on the north side is in poor condition and should be removed; front entrance door decay that requires replacement; that re-piling is needed across the entire building; that the entry foyer needs a lot of maintenance and repair with lifting tiles, broken latches, decay to timber joinery and some elevated moisture readings; kitchen floor and foundations need work; damaged wall areas need repair in several places; borer holes throughout should be commercially treated; mould is noted on wall surfaces on the exterior walls of the living room; the floors through the entire building are undulating and bouncy; there are broken window latches in several places; decay around the shower base in one of the bathrooms and the vanity requiring work or replacement; mould on the wall surfaces on the external west-facing walls and loose panels in one of the bedrooms; exterior shed is in poor condition and should be removed and replaced.
The conclusion in the building report is that the home requires considerable maintenance and repairs in many areas. It also states that these may not be limited to just the items mentioned in the report.
The evidence of the building report combined with the photos and videos produced by Ms Winter-Billington persuade me that these premises were run- down and neglected over a considerable period of time and have been deteriorating at least since December 2021, when she comprehensively raised issues about leaking windows; gaps between floors and walls; the borer; the living room floor and so on.
It is not reasonable for a landlord to assume that a tenant is happy with their maintenance approach by extending the tenancy. The landlord has an active duty to maintain the premises in a reasonable condition which is not discharged simply by waiting for the tenant to ask for maintenance and repairs, particularly where a landlord is conducting frequent inspections and issues are obvious. For example, it is not good enough for the landlord to say in this case, that in respect of roof leaks caused by blocked gutters, the tenants only needed to ask for the gutters to be cleared. If the landlord knew this was a potential problem, then the landlord ought to monitor gutters and clear them before leaks occurred. It is not the tenant’s responsibility to climb on the roof and assess what is required. Similarly, I consider the landlord’s comment that they would repair the exterior shed if the tenant asked for it demonstrates a reluctance to proactively monitor and address obvious issues. I also note the tenants’ evidence that they did ask the landlord to fix this.
In summary, I find that the landlord is in breach of their obligations to maintain the premises in a reasonable state of repair under s45(1)(b) and (c) RTA. The maintenance was well overdue, and the tenants endured substandard living conditions as a result. Compensation and exemplary damages
The tenants are entitled to compensation for the landlord’s breach.
It is a well-accepted principle when awarding damages that, as far as money can do it, the injured party shall be put in the same position they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement. Appellate Courts have also advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a commonsense approach is required; there are no general or absolute rules for calculating the amount of compensation, but the primary purpose is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $6,800 is justified as follows.
I award $5,850 which equates to a weekly rent reduction of approximately $75 from 23 December 2021 (when the tenant sent a comprehensive list of issues to the landlord) to 29 June 2023 (approximately 78 weeks) to compensate for the various outstanding maintenance and repair issues. In making a global award, I have taken into account that there were some delays in completing work because the tenants had covid which delayed draught-stopping work in 2022. Also, in mid-May 2023, the tenants requested that no work be completed before they vacated on 26 June 2023 which I take into account when awarding compensation. I have also considered periods when the landlord gave a rent discount while rooms were remediated.
In addition, there is evidence that the tenants complained about borer in an email dated 11 December 2020, 12 months prior to the list of issues in December 2021. I award a further $500 for failing to address borer adequately during that earlier 12-month period.
I also consider some compensation is justified after the tenants vacated the premises on 26 June 2023, when they were still liable for rent until the premises sold on 29 September 2023, being a further period of 13 weeks. Rent for 4 weeks is reduced as set out in paragraph 66 below. For the remaining 9 weeks I award $450 being a weekly rent reduction of approximately $50 on the basis that the landlord had not done all the work required to being the premises to a reasonable standard during that period as recommended in the building report. For example, issues such as re-piling, removal of the exterior shed, addressing the kitchen floor and the bathroom floor were not done. I note that other refurbishment was completed. This brings the total compensation for failing to maintain to $6,800.
I also award the tenants $650 for failure by the landlord to arrange lawnmowing over a 6-month period.
Some reduction of the rent claimed by the landlord for the remaining 13 weeks of the tenancy after the tenants vacated is justified given that the landlord had possession of the property to ready it for sale. This enabled the landlord to spend time staging the property and attending to maintenance to make the property more attractive, a process no doubt made much easier without tenants in occupation. I consider that a 4-week rent reduction of $4,600 is justified.
In breaching s45 RTA, the landlord has committed an unlawful act. 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 s109(3) RTA.
I am satisfied that the matter of intention has been proved. While I accept that the landlord was generally responsive to various maintenance issues raised, the evidence shows that the general state of disrepair of the premises occurred over a long period of time and due to the landlord’s failure to address issues adequately and in a reasonable time. For example, there was a delay of over 5 months before any matters raised in December 2021 were even looked at. There was a significant impact on the tenants and there is considerable public interest that landlords comply with their obligations under the RTA. I award $2,400 being one third of the maximum amount (of $7,200) that can be awarded. I take into account that there is no evidence of any previous breaches by the landlord regarding other tenancies.

Should the term of the tenancy be reduced?

Ms Winter-Billington argues that there are grounds for reducing the term of the tenancy because of the landlord’s breaches of s45 RTA proved above. There are two avenues for termination under either s56 or s66 RTA.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See s56(1) RTA.
Where the breach is capable of remedy the tenant must first serve a notice on the landlord requiring them to remedy the breach within at least 14 days and establish that the landlord has failed to do so.
The tenant served a 14-day notice on the landlord on 3 February 2023 as detailed in paragraph 26 above, requiring remedy by 19 February 2023. All items in the notice, except the borer treatment, were completed within 14 days. Borer treatment was completed on 2 March 2023. The tenant never served a 14-day notice on the landlord to address other more serious issues that she raised during the tenancy.
Notwithstanding that the borer treatment was completed outside the 14-day notice, I find that termination on that basis alone would not be justified. Had the tenant issued a 14-day notice for other more serious maintenance and repair issues capable of remedy, and been able to prove non-compliance with the notice, the Tribunal would have a more justifiable reason to consider termination. However, the Tribunal would also have to consider whether work orders would be more appropriate rather than termination.
A claim for termination under s56 is therefore dismissed.
Under s66(1) RTA the Tribunal may reduce a fixed term tenancy where: there has been an unforeseen change in the applicant’s circumstances; and there would be severe hardship to the applicant if the term is not reduced; and the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See s66(1) RTA.
The first issue is to determine is whether there has been an unforeseen change in the tenants’ circumstances. I cannot find that circumstances regarding the premises, their condition, and the impact on the tenants changed to any great extent since the tenant signed an agreement to extend the fixed term in December 2022. Ms Winter-Billington emphasized during the hearing that the issues she was raising were not new. Moreover, her own conduct reveal that she was willing to stay in the tenancy if certain renovations/maintenance was completed. In that regard, I do not find that there was an unforeseen change in the tenants’ circumstances and the appropriate route for the tenants to pursue was an application under s56 RTA.
As there is not an unforeseen change in circumstances, I don’t need to consider the other criteria for making an order under s66 and the application asking for the term of the fixed term tenancy to be reduced under s66 must be dismissed. Did the landlord fail to lodge the tenants’ bond?
The tenants claim the landlord has not lodged their bond with the Bond Centre within the required time and seek exemplary damages for the failure.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. This applies to any bond payment paid to the landlord, or to any other person on behalf of the landlord. See s19(1) RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See s19(2) and Schedule 1A RTA.
I am satisfied on the evidence that the landlord is holding bond money of $2,708 received from tenants who occupied the premises prior to Ms Winter-Billington signing a tenancy agreement. However, the landlord did not receive any funds from Ms Winter-Billington for bond nor from any subsequent tenants. I am also satisfied on the evidence that over the years Ms Winter-Billington managed the process of finding replacement flatmates from time to time and kept the bond received from incoming tenants and paid it back to them when they left. It appears, therefore, that incoming tenants have effectively paid outgoing tenants directly with their share of the bond, not involving the landlord in the process. In addition, incoming tenants did not always sign change of tenant letters prepared by the landlord. Therefore, it became difficult to track who the tenants were at any one time and to whom any bond belonged.
Ms Winter Billington argued that it was the landlord’s responsibility to lodge the bond money held, regardless of the payments made between incoming and outgoing tenants and notwithstanding that neither she nor any tenants after her actually paid bond money to the landlord. However, I am not persuaded by that argument for several reasons.
First, the landlord has a duty in relation to bond moneys paid to the landlord or to someone acting on behalf of the landlord under s19(1) RTA. No bond money was paid to the landlord or to someone acting on behalf of the landlord by the current tenant applicants.
Secondly, s21A RTA provides that where a bond is being held in respect of a tenancy agreement and the landlord’s or the tenant’s interest under the tenancy agreement passes to some other person, that other person shall, within 10 working days, cause notice of the new particulars to be sent to the Bond Centre. In other words, if there is a change of tenant during a tenancy, the new tenant must complete a change of tenant form if they have contributed to the bond. None of the current tenant/applicants advised the Bond Centre when they became tenants and in whose names the bond should be held.
If a tenant who contributed to the bond moves out, arrangements for the refund of their share of the bond should be agreed between the tenants and the landlord. Typically, the remaining or new tenants choose to pay the departing tenant their share of the bond directly. They should also ensure that a change of tenant form is completed at that time.
There is email evidence that the landlord asked Ms Winter-Billington to have new tenants pay bond money directly to the landlord, but this did not happen. The landlord sent an email on 18 June 2021 asking Ms Winter-Billington how she wished to manage the bond in relation to a new tenant stating: “ideally I would like him to pay bond into the IPS account before he moves in...” . On 24 December 2021, the landlord confirmed it would approve an application for another tenant and asked Ms Winter-Billington “will he pay bond before he moves in.” No bonds were paid to the landlord.
The landlord also advised Ms Winter-Billington about previous bond money and asked what should happen to it. In an email on 12 July 2021, the landlord asked Ms Winter-Billington for an updated list of occupants and advised her that they were holding $2,114 in bond and “we need to work out who it belongs to”. The landlord also advised that there was another $594 held at the bond centre in the name of a previous tenant which they subsequently recovered.
The current tenant applicants never paid bond money to the landlord; never advised the Bond Centre of the change of tenants and the parties never resolved the issue of the bond money held by the landlord received from previous tenants before this tenancy ended.
It might be argued that the landlord, as a professional property manager, ought to advise the incoming and outgoing tenants to sign a change of tenancy form each time the tenants changed. However, there is no legal obligation to do so. The landlord also argued that changes of tenant often happened before they were advised and departing tenants left without signing a change of tenant form to confirm they had no further claim on the bond.
In the circumstances, I find that the landlord did not fail to lodge the bond for these tenant applicants. The claim for exemplary damages is therefore dismissed.
It is likely that the incoming tenants did pay the departing tenants their share of the bond over the years such that the funds held by the landlord can safely be applied to this tenancy.

Did the landlord fail to supply required information in the tenancy agreement?

The tenants claim that the landlord did not provide a list of the landlord’s chattels in breach of s13A(1)(o) RTA and did not state in the tenancy agreement that a copy of the landlord’s insurance policy was available to the tenants on request in breach of s13A(2)(b)(ii) RTA.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See ss13(1AAA), 13(1F)(a) and Schedule 1A RTA.
The landlord provided evidence of a chattels list, although it is not clear to which tenancy agreement it was attached. A list was also provided to Ms Winter- Billington just before she vacated the premises. I am not satisfied that the tenants have proved any failure by the landlord to supply a chattels list and that claim is dismissed.
Insurance information and the required statement that a copy of the insurance policy was available on request was included in the lease renewal letter issued on 23 December 2019, signed by a previous tenant, regarding the renewal to start on 15 February 2020. The insurance information was also included in the tenancy agreement signed by Ms Winter-Billington for the same renewed tenancy. However, the renewed tenancy agreement does not contain the required insurance statement and there was no evidence to suggest a copy of the policy had been provided to the tenants. Therefore, the landlord is in breach of s13A(1)(o) RTA, which is an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that 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 s109(3) RTA.
I do not consider that the matter of intention is proved here, given that the insurance statement was contained in the renewal letter which led to the renewal of the tenancy signed by Ms Winter-Billington. I consider that the missing statement was an oversight and exemplary damages are not justified.

Was a rent increase notice valid?

Rent payable may be increased by a landlord provided all the notice requirements in s24(1) RTA are met including that the date the increased rent becomes payable is not less than 60 days after the date on which the notice is given. Failure to comply with the s is not an unlawful act for which exemplary damages may be awarded. However, a breach would entitle a tenant to refund of rent overpaid pursuant to an invalid notice.
The tenants claim that a rent increase notice dated 17 December 2021 was not emailed to Ms Winter-Billington until 3 January 2022 with the increase to take effect from the week starting 14 February 2022, which is less than 60 days’ notice. However, I am satisfied on the evidence that the rent increase notice was sent by email on 17 December 2021 at 8.16am. However, after negotiations between the parties, the landlord agreed to reduce the increase originally proposed. On 3 January 2022, the landlord sent the tenant another copy of the rent increase letter dated 17 December 2021 to record the agreed reduction. In those circumstances, where the landlord agrees to reduce the increase, the notice period does not start afresh, and the landlord is entitled to rely on the original notice. Nevertheless, the notice given on 17 December 2021 was one day short and should have stated that the increase would not take effect until 15 February 2022. However, the landlord’s rent record proves that the tenants did not start paying the new rent until 18 February 2022. Therefore, they have not suffered any loss for which compensation is payable and the claim is dismissed. Did the landlord remove the tenants’ property without agreement?
Under s33(1) RTA, the landlord shall not be entitled to seize or dispose of any of the tenant’s goods as security for or in payment of any amount owing by way of rent; or for any other reason arising from the tenancy. Seizing or disposing of any goods in contravention of ss(1) is an unlawful act for which exemplary damages up to may be awarded. See s33(2) and Schedule 1A RTA.
The landlord’s handy man disposed of items in the yard during a clear out of accumulated rubbish, taking them to the recycling station/tip shop at the city landfill. This included several rusting bicycles, buckets, old shelves, 6 large home-brewing kegs and other rubbish which had been there for months. The tenants complain that while most of the bicycles were intended for landfill, one of the bicycles and the kegs had been left for old flatmates to collect. The tenants did not get them back and seek compensation for the items.
The tenant applicants confirmed that none of the items belonged to them.
I consider that the landlord’s handy man disposing of the items was a mistake but done while trying to help the tenants. The items did not belong to the tenants who have brought this claim and there is no basis for awarding them compensation. The claim is dismissed. Suppression and filing fee
As the tenants have not substantially succeeded with their claims, I consider they are not entitled to suppression of their names and identifying details. As both parties have partially succeeded with their claims, it is appropriate that they each bear the cost of the filing fees paid.
I acknowledge that it has taken longer to write this decision than is ideal. However, there was a huge amount of evidence which took considerable time to review given that there were two hearings four months apart.

Tenancy Tribunal case 4585089 — Rent arrears at Unit/Flat 3, 153 Owen Street, Newtown, Wellington 6021

At a glance

Tenancy Tribunal case 4585089 — Rent arrears at Unit/Flat 3, 153 Owen Street, Newtown, Wellington 6021

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord failed to maintain the premises?

Should the term of the tenancy be reduced?

Did the landlord fail to supply required information in the tenancy agreement?

Was a rent increase notice valid?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord failed to maintain the premises?

Should the term of the tenancy be reduced?

Did the landlord fail to supply required information in the tenancy agreement?

Was a rent increase notice valid?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions