What was Tenancy Tribunal case 4587569 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4587569?

Property Damage: $2,000.00 awarded to tenant; Rent Arrears: $5,971.43 awarded to landlord; Smoke Alarms: $4,350.00 awarded to tenant

What type of tenancy dispute was case 4587569?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4587569?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9341578-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4587569 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4587569?

Property Damage: $2,000.00 awarded to tenant; Rent Arrears: $5,971.43 awarded to landlord; Smoke Alarms: $4,350.00 awarded to tenant

What type of tenancy dispute was case 4587569?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4587569?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9341578-Tribunal_Order_Redacted.pdf.

104 School Road, Paihia 0200 Tenancy Tribunal Case 4587569 — Smoke alarms

Tenantcheck Insights

Reasons

Background

Claims and awards in Tenancy Tribunal application 4587569 — net $378.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 17 August 2023	$5,971.43		Rent arrears to 17 August 2023
Exemplary damages: Breach of duties in respect of		$2,000.00	Breach of duties in respect of
smoke alarms		$4,350.00	smoke alarms
Total award	$5,971.43	$6,350.00
Net award		$378.57
Total payable by Landlord to Tenant		$378.57

The tenancy began on 15 August 2020. The rent is $550.00 per week.

[The tenant/s] paid the rent consistently and in advance until January 2023, when she ceased paying rent out of frustration with various maintenance issues. She resumed paying rent at a rate of $440.00 per week in March 2023.

The landlord’s application seeks rent arrears.

The tenant’s application seeks exemplary damages and compensation for failure to provide smoke alarms and failure to maintain the premises in a reasonable state of repair.

The hearing took place in [Event location suppressed] on 17 August 2023. Both parties attended the hearing. Ms Ponsonby represented the landlord. Rent arrears

Ms Ponsonby’s rent record shows rent arrears of $5,971.43 to 17 August.

The amount of rent arrears was not disputed. Smoke alarms

Since 2016 landlords have had a legal duty to provide compliant smoke alarms in tenanted premises.

A breach of this duty is an unlawful act 1 .

As at August 2020, the Tribunal could award exemplary damages of up to $4,000.00 for this unlawful act. In February 2021, the maximum award was increased to $7,200.00.

There were no smoke alarms in this property when [The tenant/s]’s tenancy began in August 2020.

On 18 May 2021, [The tenant/s] sent Ms Ponsonby an email stating “smoke alarms – we have finally purchased ourselves and will install this week”.

Ms Ponsonby was not aware that there were no smoke alarms in the property.

Ms Ponsonby submitted that the owner was living in the house until shortly before [The tenant/s]’s tenancy began, which made it difficult for her to carry out a detailed entry inspection. Ms Ponsonby saw the owner before the start of the tenancy and he had smoke alarms in his possession, and she assumed that he would install the alarms before [The tenant/s] moved in.

The landlord failed to meet the duty to provide working smoke alarms. 1 Section 45(1)(ba) and 45(1A) Residential Tenancies Act 1986 “RTA”

In considering an award of exemplary damages for an unlawful act, the Tribunal must have regard to 2 : a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.

In this instance: a. I did not hear evidence from the owner, and I do not know why he failed to install the smoke alarms. b. The effect of the act was to put the tenants at risk unnecessarily. c. There is a strong and legitimate public interest in ensuring that landlords meet their obligations in respect of smoke alarms. Smoke alarms are a simple, inexpensive, and effective means of significantly reducing the risk of harm and property damage.

I have had regard to other decisions from the Tribunal from time when the maximum exemplary damages award was $4,000.00, including the following: a. In Laurie v Waka Te Anaru Tapui Ltd [2018] NZTT Hawera 4137034 there was one working smoke alarm present, but this was not sufficient to meet the requirements of the Regulations. The Tribunal awarded exemplary damages of $2,000.00. b. In Tough v Christchurch Residential Rentals Ltd [2018] NZTT Christchurch 4142291 the landlord failed to prove that there were smoke alarms in the property. The Tribunal awarded exemplary damages of $1,000.00. The adjudicator stated that the award of damages “was at the lower end because I acknowledge [the landlord’s] belief that he did provide smoke alarms”. c. In Wiremu v Escondida NZ Ltd [2018] NZTT Waitakere 4149284 the landlord failed to replace existing alarms that were removed from the property before Mr Wiremu’s tenancy. The landlord submitted that this was due to an oversight. The Tribunal awarded exemplary damages of $2,000.00. d. In Bosch v Lin [2019] NZTT Manukau 4197118 the landlord divided a home into two rental dwellings. Only one of the two dwellings had a smoke alarm. A family with young children rented the non-alarmed premises for several years. The Tribunal awarded exemplary damages of $3,500.00. e. In Mike Shaw Farms Ltd v Smith [2020] NZTT Hamilton 4208856 there were no smoke alarms in the premises when the tenancy began. During the tenancy the tenant asked for smoke alarms, and the landlord provided them, 2 Section 109 RTA but the alarms were non-complying. The Tribunal awarded exemplary damages of $2,500.00.

I am willing to give the landlord the benefit of the doubt and assess exemplary damages on the basis that the landlord’s failure to install smoke alarms was an oversight.

I will award exemplary damages of $2,000.00. Leak from chimney

There was a leak from the chimney into the lounge due to a rusted flue cap.

In July 2021 [The tenant/s] sent Ms Ponsonby an email stating: Still no one to fix fireplace? We got home from Queenstown last week after the storms up north and had to empty a bucket of water from inside the fireplace as well as clean up flood in lounge which had spread from the hearth about 2 meters through the carpet. Took about a week to dry out.

[The tenant/s] submitted that in heavy rain the water would cascade down the chimney. In less heavy rain the water would drip down, particularly if the wind was coming from a southerly direction. She would use towels to stop the water from tracking from the hearth to the carpet.

In January 2023 [The tenant/s] sent Ms Ponsonby an email stating that she was stopping rent payments until various maintenance issues were addressed, including the chimney leak. In respect of the leak the email stated: Leaking roof / fireplace – still leaking all that was done was a guy came in and cover the roof with no more gaps

The source of the leak was identified and repaired in February / March 2023.

Landlords have a duty to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises 3 .

Although roof leaks can sometimes be difficult to identify and repair, in this instance the leak was in a specific area, and it seems that the fault was identified and repaired promptly once [The tenant/s] stopped paying rent.

It is not clear whether [The tenant/s]’s email in July 2021 was the first time that she brought this issue to the landlord’s attention, but the email clearly identifies the leak as a serious problem that required urgent attention by the landlord.

My finding is that the landlord failed to meet its maintenance obligation in terms of address the chimney leak. 3 Section 45(1)(b) RTA

I will address the question of compensation for this and other maintenance breaches below. Fireplace

The property has a woodburner. When the tenancy began, this was the only fixed means of heating in the house.

[The tenant/s] was not advised that the fireplace could not be used.

In early 2021 the landlord arranged for a routine cleaning / inspection of the fireplace in preparation for winter.

The fireplace was deemed to be unsafe.

In February / March 2023, the landlord had a heat pump installed in the lounge.

The healthy homes standards impose an obligation on the landlord to have a fixed means of heating in the main living area of home that is capable of producing an energy output sufficient to heat that area.

The standards apply to every new tenancy entered into after July 2021, and will apply to every tenancy, irrespective of when it began, from July 2025.

This tenancy began in August 2020. Therefore, the healthy homes standards do not apply.

However, the landlord still had a duty to provide and maintain the premises in a reasonable state of repair. The property that [The tenant/s] rented has a woodburner, and [The tenant/s] reasonably assumed that the woodburner was in working order and that she could use it to heat the home.

For a period of approximately two years, [The tenant/s] did not have that important amenity.

My finding is that the landlord failed to meet its maintenance obligation in respect of the fireplace.

The issue of compensation is addressed below. Shower leak

There is a leak from the shower that is causing damage to the bathroom floor.

Substantial work is required to repair the leak and replace the floor. This is the principal reason for the landlord’s notice to terminate the tenancy on the grounds of the need for repairs.

[The tenant/s] has continued to use the shower, but the deterioration of the floor has been a cause of concern and some amount of inconvenience for her, as indicated in [The tenant/s]’s email to Ms Ponsonby dated 14 November 2021: We also haven’t seen anyone for the holes in the shower room floor or dining room. Shower room is worse but can’t see any leaks in the shower. Should we be organising a builder or plumber for this?

The delay in getting the remedial work done is understandable given the scale of the job.

However, this is a ‘property problem’ that caused a more than minimal loss of amenity for the tenants. It is appropriate to consider compensation on a loss of amenity basis.

Compensation is addressed in detail below. Moisture ingress / dampness in lower level of house

The lower level of the house has concrete block walls.

The bedrooms, apart from the master bedroom, are on this level.

[The tenant/s] submitted that this area has always been particularly damp. She has run de-humidifiers in this area since the start of the tenancy.

In July this year, [The tenant/s] discovered an area of wet carpet in one of the bedrooms. She informed Ms Ponsonby, who promptly arranged for a plumber (Total Plumbing & Gas) to investigate.

Total Plumbing & Gas reported that: It’s looking like surface water is running into the room as I could not find any leaks to do with water supply and waste pipes. The bank has slipped away above the room too.

Ms Ponsonby provided photographs showing that part of a bank has collapsed onto the exterior wall.

The photographs of the interior show some patches of peeling paint.

The extent of water ingress only came to light recently, and it is possible that the problem worsened significantly recently. It is not known when the bank collapsed onto the exterior wall.

However, the fact that this area has been damp since the beginning of [The tenant/s]’s tenancy, combined with the concrete block construction, the absence of any apparent drainage, and the peeling paint on the interior walls, indicates that there is a long-standing problem with stormwater pooling against the exterior wall and seeping through the concrete blocks.

As noted above, the healthy homes standards (which include standards for stormwater drainage) do not apply to this tenancy. The issue only came to a head recently, and it is understandable that the landlord has not taken immediate steps to repair given that the work would be large scale and this tenancy is coming to an end soon. The landlord has not breached its maintenance duty in respect of this issue.

However, as with the shower leak, this is another ‘property issue’ that has caused [The tenant/s] a more than minimal loss of amenity for a sustained period of time. Even in a tenancy that the healthy homes standards do not apply to, a tenant can reasonably expect that the bedrooms in the house will not suffer from moisture ingress from the exterior to the interior, and that it will not be necessary to run de- humidifiers more or less constantly in order to create habitable conditions.

It is appropriate to make an award of compensation for loss of amenity Glass panes broken

At the beginning of the tenancy there were several broken window panes in the lounge and a broken glass pane in a door.

The landlord arranged for a glazier [Company] to attend. [Company] replaced the broken pane in the door, but not the panes in the lounge.

[The tenant/s] continued to raise the issue in her emails to Ms Ponsonby during the tenancy.

At some point another glazier, [The glazier], went to the property to investigate the windows in the lounge. I do not know the date of [The glazier]’s visit, but he sent an email to Ms Ponsonby on 16 August 2023 stating: I visited the property at 104 School Road to assess the windows in the lounge area. At the time of my visit there were minor cracks in a couple of narrow fixed pane windows. The glass is laminated safety glass and is of no risk to the tenant of breaking out of the frame and causing harm, it is very difficult to break through laminated glass due to it being 6.38mm thick with a plastic inner. I see no immediate / urgent need for this to be replaced, there is no safety or draft issue caused by the cracks

[The tenant/s] provided me with photographs showing the window cracks. I acknowledge that these are tall narrow fixed windows, and the photographs only show the cracked areas at the bottom of the panes. Even so, it is difficult to reconcile those photographs with [The glazier]’s statement that there are only “minor cracks”.

The photos show five cracked panes. Two have an impact point with large cracks radiating out from the middle of the pane to the edge of the frame. Two have a single large crack across the full width of the pane. Another shows a crack across the full width of the pane with a missing fragment of glass in the middle, which appears to have been taped over.

I accept [The glazier]’s statement that the panes are not in imminent danger of falling out, and that the damage is not creating a problem with draughts. I also acknowledge that replacement of the panes would be costly given that they are a custom size and safety glass.

However, I do not accept that the presence of this type of damage is consistent with the landlord’s duty to provide the premises in a reasonable state of repair. It is certainly damage that the landlord would require a tenant to put right if the tenant had caused it.

The broken panes have not caused any particular loss of amenity for the tenants, but it has added to [The tenant/s]’s frustration and to her (not unjustified) perception that the owners were unwilling to meet their duty to keep the premises in a reasonable state of repair. Maintenance issue - compensation

Compensation for maintenance is generally assessed as if it was a retrospective rent reduction, taking into account the extent of the loss of amenity and the period for which it endured.

Where there are multiple issues present at the same time, the cumulative amount of rent reduction should not reduce the rent to zero, unless the effect of the issues is significant enough to render the premises essentially uninhabitable.

In this instance: a. The most significant issue is the non-functioning fireplace. The tenants had two winters in the property without an effective means of heating. b. The chimney leak was present from the beginning of the tenancy until February / March this year. As well as causing inconvenience for the tenant, the leak damaged the floor in the lounge and added to the damp living conditions. c. The shower leak also added to the damp living conditions and caused holes in the bathroom floor. d. The moisture ingress in the bottom floor only became critical recently, but it is likely to have been present to a lesser extent for the duration of the tenancy, causing loss of amenity and additional cost due to the need for de- humidifiers. e. The broken glass panes are more minor from a loss of amenity perspective.

I will award compensation totalling $4,350.00 comprised of: a. $2,400.00 for the fireplace; b. $850.00 for the chimney leak; c. $500.00 for moisture ingress into the bottom level; d. $500.00 for the shower leak and bathroom floor damage; e. $100.00 for the broken window panes. Outcome, filing fee, name suppression

The landlord is to pay the tenant $378.57.

Both parties have been successful in their applications. Each must bear their own cost of the filing fee.

I have made the order directly against the owner on the grounds that: a. Far North Real Estate (2010) Ltd acted as agents only; and b. The evidence provided to me shows that Ms Ponsonby took all reasonable steps to attempt to address the issues that [The tenant/s] raised. The responsibility for failing to take prompt and appropriate action falls to the owner.

The tenant sought name suppression. Name suppression is granted on the grounds that the tenant was successful in her application.

Reasons

Background

Claims and awards in Tenancy Tribunal application 4587569 — net $378.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 17 August 2023	$5,971.43		Rent arrears to 17 August 2023
Exemplary damages: Breach of duties in respect of		$2,000.00	Breach of duties in respect of
smoke alarms		$4,350.00	smoke alarms
Total award	$5,971.43	$6,350.00
Net award		$378.57
Total payable by Landlord to Tenant		$378.57