What was Tenancy Tribunal case 4585689 about?

The tribunal order states: Barfoot & Thompson Limited must pay [The tenant/s] $2,620.44

How much money was awarded in case 4585689?

Compensation: Failure to provide and…: $2,100.00 awarded to tenant; Cleaning: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4585689?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4585689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10387192-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4585689 about?

The tribunal order states: Barfoot & Thompson Limited must pay [The tenant/s] $2,620.44

How much money was awarded in case 4585689?

Compensation: Failure to provide and…: $2,100.00 awarded to tenant; Cleaning: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4585689?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4585689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10387192-Tenancy_Tribunal_Order.pdf.

20 Smedley St, Manurewa, Auckland 2102 Tenancy Tribunal Case 4585689 — State of repair

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4585689 — net $2,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide the premises in a reasonable state of cleanliness	$500.00	Failure to provide the premises in a reasonable state of cleanliness
Compensation: Failure to provide and maintain	$2,100.00	Failure to provide and maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,620.44
Total payable by Landlord to Tenant	$2,620.44

Ms Harding (the tenant) entered a tenancy agreement with Barfoot & Thompson Ltd Manurewa as agent for Mr [The landlord/s] and Mrs Anna Martens (AJ Resources Ltd) (the landlord) for the premises situated at 20 Smedley Street, Manurewa. The tenancy started on 13 November 2019 and ended on 20 June 2023. The rent was $850.00 per week and the bond was $3,400.00.

The tenant claims compensation due to various breaches by the landlord: i) to comply with healthy homes standards, ii) failing to remove rubbish from the premises, and iii) failing to provide and maintain the premises in reasonable state of repair.

The claims were heard over two hearings. Barfoot and Thompson Ltd Manurewa (“Barfoot and Thompson”) attended as agent for the landlord and the tenant attended the hearings in person. The tenant’s daughter (a former joint tenant of the tenancy) also attended the hearings and gave direct evidence. Mr Martens attended the second hearing for the owners by teleconference.

While I have carefully considered all the evidence and submissions from the parties, I have only addressed the evidence and arguments to the extent necessary to explain my decision. General principles

Before I consider the specific issues, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. This means the tenant as the applicant must prove with evidence that her claim is more likely than not, correct.

When assessing whether the onus of proof has been discharged by an applicant, I need to consider and evaluate the evidence and information presented by the parties. What is required is for the Tribunal to be satisfied that, overall, it is more probable than not that the facts occurred as described and that the inferences sought to be drawn can reasonably be drawn from the facts as they have been found.

The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.

As a matter of law, a party is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered. Where any party to a tenancy agreement breaches any provision of the agreement or the RTA, the other party shall take all reasonable steps to mitigate the loss (section 49 RTA). The Tribunal may take account of what attempts have been made by the parties to mitigate (reduce) their loss. Was the premises compliant with the Residential Tenancies (Healthy Homes Standards) Regulations 2019?

The Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) came into force on 1st July 2019. Section 42A of the HHS allows for the date of compliance to be 1st July 2025 for tenancies of this sort that haven’t been subject to any variations to the tenancy agreement, and that have a date of commencement prior to 1st July 2021.

This tenancy is one of those. Therefore, given the date the tenancy started, the HHS does not apply to this tenancy. Was the property provided in a reasonable state of cleanliness and provided and maintained in a reasonable state of repair?

A landlord is required to provide and maintain the premises in a reasonable state of cleanliness and repair, having regard to the age and character of the premises (section 45(1)(a) and (b) RTA. In addition, the landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises (section 45(1)(c) RTA).

It is well settled law that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. 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 section 40(1)(d) RTA. 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.

The tenant says there were issues with the premises from the start and she had to keep her grandchildren from going near certain areas as they would be injured. The tenant says that despite repeated requests the landlord often ignored her pleas. Her main concerns included the unsafe fence which was broken and on a lean and was not repaired for the duration of the tenancy, rubbish that was left at the premises by the last tenants and tradesmen, and tree stumps over the lawn section creating a safety hazard with some roots wrapped around drainpipes causing backflowing in the toilet. The tenant also said the house was very cold, prone to excessive mould and dampness, lacked heating and there was a failure to install heat pumps as promised by the owner.

The tenant says that despite repeated requests to the landlord, these issues were not addressed in a timely manner and limited their use and enjoyment of the property.

The tenant gave evidence that when they moved into the house in 2019, the owner had attended the property unannounced and assured them that all the above issues would be addressed. He also indicated that heat pumps would be installed but it never happened. The tenant was also adamant that she had raised all these issues with the property managers multiple times over the years. This was confirmed by her daughter who gave direct evidence to the Tribunal.

The tenant explained that she had originally entered the tenancy with her daughter, but due to growing concerns with the condition of the premises and the continual frustration by the lack of response and attendance to maintenance issues and the impact of their health and safety particularly of her grandchildren, her daughter decided to vacate the tenancy.

The tenant did not produce any written evidence of the complaints she had raised with the landlord and had not issued any 14 days notices in relation to the rubbish left at the premises and maintenance issues during the over 3-year tenancy. She said she assumed they would be all noted in the inspection reports and was disappointed to find out that they weren’t.

In response, Barfoot and Thompson acknowledged that the fence required work, and this had been notified to the owner. However, it had no communication from the tenant in writing in relation to the other issues, nor had it been noted in the property inspection reports. Barfoot and Thompson noted that the tenant’s previous property managers no longer worked for Barfoot and Thompson and it was unable to access their emails to see if there had been communication from the tenant regarding the issues raised.

The owner sought to minimise the landlord’s breaches by suggesting that the tenant has been planning this claim for some time. The owner considered the tenant’s claims were for the most part fabricated and disputed the gravity of the issues and inconvenience as described by the tenant.

During the hearings we spent some time working through the tenant’s list of concerns and the parties’ evidence about what had and had not been done or was arranged to be done. Rubbish

The tenant gave evidence that there was a lot of rubbish left at the premises (including under the house) by the last tenants and tradesmen. Again, she said she had to keep her grandchildren from going near the piles of rubbish as they would be injured. She asked the property manager to remove the rubbish and even offered to do this themselves as long as the landlord provided a skip bin. She recalled this had been agreed but no skip bin was provided.

By November 2020, being frustrated with no action from the landlord, the tenant decided to sort the issue herself. She arranged for her ex-husband and a man he was helping at the time to remove the rubbish. She provided an invoice for $680.00 which she would like the landlord to compensate her for, this also included removal of debris from trees on their side which were cut by the neighbours because they were hanging on their side.

I find the landlord was aware or ought to have been aware that rubbish had been left at the property at the start of the tenancy. I say this because although there was no rubbish noted in the ingoing inspection report, the photographs show a pile of rubbish left in the carport, debris in the corner near the big tree, timber/building material near the shed and an old door left along the side of the house. I also note the Health Homes Standards Report by Warm Fuzzies dated March 2021 produced by the landlord noted rubbish under the house.

On the evidence, I find the landlord failed to provide the premises in a reasonable state of cleanliness in breach of its obligations under section 45(1)(a). The landlord queried the tenant’s claim of $680.00 and considered it excessive but has not provided any independent evidence to show it was unreasonable. I allow the tenant’s claim in part and award $500.00 which I consider reasonable. Tree stumps and drainage maintenance

The tenant gave evidence there were 3 tree stumps over the lawn section creating a safety hazard. One was knee high and two were waist/hip high. There was also one tree stump below the toilet window and its roots were twisted around the drain pipes causing backflowing into the toilet. Despite repeated requests to the property managers, these issues were not addressed. After waiting for some time, the tenant said she had enough and asked her ex-husband and a man he was helping at the time to remove the tree stumps and address the issue with the pipes. She provided an invoice for $1,580.00 and requested the landlord to compensate her for the cost.

The tenant also said her grandchildren were not allowed around the back of the sleepout as the overflow drain hose was not covered and there was also broken rocks and concrete everywhere. She arranged for her ex-husband who was an apprentice drainlayer to cover the drain. It was eventually sorted by the landlord, but the tenant says this took over a year.

The tenant did not produce much in the way of supporting evidence. There are limited photographs of the tree stumps. There are no photos of the roots wrapped around the piping.

It is accepted that a landlord should be responsible for maintaining trees, tree stumps and drainage or for obtaining expertise where required for maintenance purposes. However, the landlord does not believe the tenant had raised any complaint. There is no written evidence supporting the tenant’s claim nor is there any reference in the property inspection reports.

In situations where there is conflicting evidence, I remind myself of the burden of proof which rests here on the tenant applicant to show on the balance of probabilities what they say is more probable than what is said by the landlord in response.

I find there is insufficient evidence before the Tribunal to assist in determining this matter and so the claim must be dismissed. Fence

In terms of the problems with the fence, although there is no specific request in writing from the tenant to the landlord, I accept the tenant’s evidence that this problem was raised at the start of the tenancy in 2019. The issue was clearly investigated by Barfoot and Thompson at the time prompting estimates from CPM Counties Property Management dated 22 November 2019. The estimates state: On inspection of fence at property behind garage I would recommend replacement of entire length. There is a lot of rot throughout the fence rails, posts and pailings. It will be more cost effective to build a new fence opposed to repairing the damaged sections and trying to re instate them.

The fence was not replaced despite repeated requests from the tenant and despite fence repairs noted in eight routine inspection reports dated 25 June 2020, 10 December 2020, 10 December 2020, 27 May 2021, 30 November 2021, 22 March 2022, 7 July 2022, 4 April 2023.

The tenant said they applied for the property because it was fully fenced. She said it was due for an upgrade at the start and they were assured this would be done. The tenant gave evidence that the condition of the fence had gotten worse over the duration of the tenancy. The tenant said she was always fearful the fence would fall on her grandchildren. She said it was also not secure and she described an incident where one of her grandchildren was able to get through a gap in the fence and could have been mauled by a dog. She said that on occasion she was forced to take the initiative to get help herself to prop the fence up. A boundary fence eventually collapsed in March 2023 following a storm. Only part of the fence was repaired in April 2023.

The owner denied that he had attended the premises at the start as submitted by the tenant. He also denied that he had ever suggested that the issues raised by the tenant would be addressed. He was concerned that Barfoot and Thompson had not made them fully aware of the issues with the fence.

Barfoot and Thompson confirmed that the owner was repeatedly notified that the fence required attendance from the start. They noted that Mr Martens became unwell and therefore communication was mostly with Mrs Martens. Barfoot and Thompson expected homeowners to do repairs.

The photographs produced by the tenant and the landlord of the fence satisfy me that the fence had not been in an adequate state of repair from the start. The problem persisted throughout the whole of the tenancy. During this time the tenant was put to some considerable inconvenience and distress. The delay in attending to this issue was too long.

I find, on the balance of probabilities, that the fence was not provided and maintained in a reasonable state of repair, the landlord had notice of the problem and failed to repair within a reasonable time.

Accordingly, the tenant is to be compensated. Taking into account the nature and duration of the issues, the resulting effect for the tenant, the amount of $600.00 is awarded to the tenant.

The amount awarded also reflects attempts the tenant has made to mitigate (reduce) her loss. Where any party to a tenancy agreement breaches any provision of the agreement or the RTA, the other party shall take all reasonable steps to mitigate the loss (section 49 of the Act). It is not reasonable for the tenant to pursue compensation some years later in circumstances where she could have enforced her rights to the address the issues through the Tribunal in a much shorter time frame. Heating, excessive dampness and mould issues

The tenant claims that the landlord has breached their obligations to provide heating and that they have had to endure a cold and damp house over the period of the tenancy. The tenant also claims the landlord failed to install heat pumps as promised.

The tenant has claimed compensation because the house was “freezing” and caused physical and mental harm to her and her family. The tenant gave evidence that they were all often unwell with the flu and she had pneumonia every year since she lived at the tenancy address because it was so cold.

Under section 45(1)(bb) RTA, landlords have to meet the HHS in respect to heating, ventilation, water ingress, and draught stopping by certain dates. Between 1 July 2021 and 1 July 2025, all private rentals must comply with the HHS within certain timeframes from the start of any new, or renewed, tenancy. As noted above, the HHS did not apply because the tenancy commenced in 2019 and as such the compliance date is not until July 2025. In the meantime, under section 45(1)(c), the Housing Improvement Regulations 1947 (HIR) still applies and sets out minimum standards that apply to the premises including: Regulation 6 states: Every living room shall be fitted with a fireplace and chimney or other approved form of heating.” Regulation 15 states: Every house shall be free from dampness. Regulation 17(1) states: The materials of which each house is constructed shall be sound, durable, and, where subject to the effects of the weather, weatherproof, and shall be maintained in such a condition.

The landlord disputed the tenant’s claim. The landlord denies the tenant was promised installation of a heat pump or that they had received a request from the tenant for installation of a heat pump.

Of concern however, both Barfoot and Thompson and the owner were not of aware of the heating requirement as per regulation 6 HIR.

There is a greater responsibility on landlords to know the law. As professional property managers with a long standing and substantial management portfolio, it is to be expected that Barfoot and Thompson will have a far more sophisticated understanding of the law, and they will use this to meet rather than avoid the requirements of current legislation in the service of tenants and property owners alike.

In this case, the premises did not have an approved form of heating in the living room. From the beginning of the tenancy the tenant experienced three winters without the landlord providing any approved form of heating. This requirement does not rely on the tenant asking for it. This is a minimum standard that should be complied with.

Although the date for Healthy Homes Standards compliance for this tenancy would have been 1 July 2025, the Healthy Homes Assessment report obtained by the landlord in March 2021 also demonstrates that the premises were not maintained to a reasonable standard in breach of section 45 RTA. Reference is made to no heating capacity in the living room and unreasonable gaps or holes in the property in the property that could cause noticeable draughts.

I find the tenant has proved that she did tell the landlord about the issues concerning the house being cold, excessive mould and dampness issues. The property inspection report dated 1 June 2021 states “The tenants have been complaining about living in a cold and damp, mouldy house, upon inspection of the property I did not see any mould or condensation and the house does not smell at all”. The tenant said the reason why the property manager could not see any sign of a problem was because she always did her best to keep on top of cleaning the mould and dampness issues.

Weathertightness is a fundamental condition for a rental property. Excessive mould and dampness issues in general are serious issues and should be attended to promptly as it can create an unhealthy and undesirable living environment; and can also reduce the tenant’s use and enjoyment of the property.

I find the landlord could have done more sooner based on the tenant’s concerns and the evidence available. A more robust investigation should have been undertaken. I do not consider that sufficient steps were taken by the landlord.

I accept the tenant has suffered some loss of amenity because the tenant was paying rent for a warm, dry home for her family, and this is not what she got. I have taken a broad-brush approach and made an award of $1,500.00 that is meaningful but not excessive. The amount awarded also reflects attempts the tenant has made to mitigate (reduce) her loss, as commented on above. Filing fee

As the tenant has been substantially successful with her claims, I consider it reasonable to order the other party to reimburse the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4585689 — net $2,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide the premises in a reasonable state of cleanliness	$500.00	Failure to provide the premises in a reasonable state of cleanliness
Compensation: Failure to provide and maintain	$2,100.00	Failure to provide and maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,620.44
Total payable by Landlord to Tenant	$2,620.44

The tenant says that despite repeated requests to the landlord, these issues were not addressed in a timely manner and limited their use and enjoyment of the property.

During the hearings we spent some time working through the tenant’s list of concerns and the parties’ evidence about what had and had not been done or was arranged to be done. Rubbish

The tenant did not produce much in the way of supporting evidence. There are limited photographs of the tree stumps. There are no photos of the roots wrapped around the piping.

I find there is insufficient evidence before the Tribunal to assist in determining this matter and so the claim must be dismissed. Fence

Accordingly, the tenant is to be compensated. Taking into account the nature and duration of the issues, the resulting effect for the tenant, the amount of $600.00 is awarded to the tenant.

Of concern however, both Barfoot and Thompson and the owner were not of aware of the heating requirement as per regulation 6 HIR.

As the tenant has been substantially successful with her claims, I consider it reasonable to order the other party to reimburse the filing fee.

Tenancy Tribunal case 4585689 — State of repair at 20 Smedley St, Manurewa, Auckland 2102

At a glance

Tenancy Tribunal case 4585689 — State of repair at 20 Smedley St, Manurewa, Auckland 2102

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions