What was Tenancy Tribunal case 4597349 about?

The tribunal order states: Marie Louise Olivier and Kevin Olivier must pay [The tenant/s] $306.10

How much money was awarded in case 4597349?

Adjustment For Additional Water Paym…: $91.92 awarded to tenant; Compensation: $214.18 awarded to tenant

What type of tenancy dispute was case 4597349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4597349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9729165-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4597349 about?

The tribunal order states: Marie Louise Olivier and Kevin Olivier must pay [The tenant/s] $306.10

How much money was awarded in case 4597349?

Adjustment For Additional Water Paym…: $91.92 awarded to tenant; Compensation: $214.18 awarded to tenant

What type of tenancy dispute was case 4597349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4597349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9729165-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4597349 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4597349 — net $306.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Adjustment for additional water payment	$91.92	Adjustment for additional water payment
Compensation	$214.18	Compensation
Net award	$306.10
Total payable by Landlord to Tenant	$306.10

Order

Marie Louise Olivier and Kevin Olivier must pay [The tenant/s] $306.10 immediately from the bond, as calculated in table below:
The Bond Centre is to pay the balance of the bond of $306.10 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing: the tenants by teleconference.
Both parties made claims against the other. The matters were first heard on 6 September 2023. The landlords’ claim was finalised in an order dated 8 September 2023 (which was not published), and the tenants’ claim adjourned for a further hearing. The bond was partially refunded to the tenants, and the balance held at the Bond Centre pending the outcome of the tenants’ claim. Landlords’ claim: adjustment for water
In the previous order I made findings about rent and water. When reviewing the landlords’ financial records, it appeared that the tenants had made an additional water payment of $91.92 that was not taken into account. As the payment was not discussed at the hearing, the issue was reserved for further discussion at the adjourned hearing.
I find that the additional payment was made and that the amount owing for rent water needs to be adjusted accordingly. Tenants’ claim: Misrepresentation
The tenants say the landlords failed to tell them that there would be extensive roadworks outside the unit. They say they endured many months of noise and dust from pneumatic drills and heavy machinery. To reduce the noise, they closed the windows facing the road, which caused the unit to be excessively hot during the warmer months. The landlords say they were unaware of the impending roadworks and that the tenants never complained about the issue during the tenancy.
Because the landlords had no control over the roadworks, they did not breach the tenants’ right to reasonable peace comfort or privacy under s 38(2) Residential Tenancies Act 1986.
The Tribunal does have powers to make orders where a tenancy agreement has been induced by a misrepresentation (ss 78(1)(g) and (h) RTA). However, there is insufficient evidence to prove misrepresentation in this case. If the tenants had found the situation to be unbearable during the tenancy, they could have applied for early termination of the fixed term under 66 RTA. Failure to repair:
Section 45(1)(b) RTA provides that a landlord must provide and maintain the premises in a reasonable state of repair.
Carpet ‘tacks’: The tenants notified that landlords that there were tacks in the carpet edge next to the kitchen vinyl. The sharp objects were most likely from the carpet ‘smooth edge’. In a text message dated 28 June 2022, the landlords said they would fix the tacks on the floor. They did not do so. The landlords say the tenants said they had fixed the problem, which the tenants deny.
I accept the tenants’ evidence that they did not tell the landlords the problem was resolved. Although the landlords say none of the previous tenants had complained about the tacks, they should have completed the repair.
Gap at front door: The tenants say there was a gap between the front door and door frame that caused excessive draughts. They say they had to block the draughts with towels and packs of toilet paper. In the same text message on 28 June, the landlords said they would “insulate” the front door. Again, they did not do so. The landlords say that a healthy homes report commissioned after the end of the tenancy found the front door to be compliant with draught-stopping standards.
Although the tenants’ photos show an obvious gap, there is insufficient evidence to show that the door did not meet the required standard. Therefore, although the landlords did not do what they said they would do, there is insufficient evidence to prove a breach.
Blocked bathroom sink: The tenants say the bathroom sink was slow to drain. They did not notify the landlord and attempted to fix the problem themselves. As they did not notify the landlords of the need for repair, they have not proved a breach.
Internal doors: The tenants say three of the internal doors did not shut properly. They notified the landlords, but later told them they had fixed the problem. Therefore, they have not proved a failure to repair. Breach of healthy homes standards:
Ventilation standards: The tenants say the smaller bedroom failed to comply with the ventilation standard, which requires all habitable spaces to have a window, skylight or door that opens to the outside (r 21 Residential Tenancies (Healthy Homes Standards) Regulations 2019). They say that neither the window nor the skylight was openable, and they questioned whether the room was in fact a bedroom.
The landlords’ healthy homes report confirms that the room is a bedroom and says it is compliant because, although the window does not open, the skylight is openable. The landlords say the skylight opens with a pole, and that a pole was left at the premises. The tenants deny this, but there is no evidence that they raised the issue of ventilation with the landlords during the tenancy. Had they done so, their concerns would have been easily resolved. The tenants suggested that the landlords could have modified the skylight after the end of the tenancy. However, there is no evidence to rebut the landlords’ evidence that they did not.
Heating standard: The tenants say that the landlords did not provide a heat pump in the living room (r 8 HHS). The landlords acknowledge that they did not provide an approved form of heating.
The main concern for the tenants is that a heat pump would have provided them with air-conditioning during the warmer months, when they had to close windows to keep out the dust and noise. However, that is not the purpose of the standard, which is to provide a means of heating during the colder months. The landlords’ healthy homes assessment confirms that the electric heater subsequently installed meets the requirements of a qualifying heater.
Although the tenants gave evidence at the hearing that the unit was “freezing” during the winter (in part due to the gap at the front door), that concern is not reflected in any of the documentary evidence filed. The landlords say they did not comply with the standard because the unit is warm and none of their previous tenants have needed a heater. That is no excuse for non-compliance. It is however a factor that can be taken into account in assessing compensation. Entry without notice
The tenants say that, on several occasions the landlords entered the premises without giving the required 24 or 48 hour notice. Instead, they phoned an hour or so beforehand asking if they could come around. Section 48 RTA permits a landlord to enter premises where they have given the requisite notice, or where the tenant has freely given their consent immediately before the entry.
The landlords deny entry without written notice but have not provided copies any of the requisite notices. Therefore, I accept that on more than one occasion the landlords entered having given a short period of oral notice. That said, the main purpose of the visits was to discuss repair issues and I also accept that the tenant allowed entry on each occasion. The tenants say they allowed entry so as not to create waves, which is an issue that landlords need to be mindful of as consent must be freely given. However, I find that no breach occurred.

How much compensation should be awarded?

I have made a finding that the landlords breached the duty to repair in a minor way, and the heating healthy homes standard in a more significant way.
After deducting the water adjustment from the remaining the bond, a balance of $214.18 remains. The tenants have applied for compensation rather than exemplary damages. Had they applied for the latter, it is likely I would have made a moderate award for breaching the healthy homes standard. However, as matters stand, I am limited to awarding compensation.
Although the tenants have expressed major concerns about their tenancy, they relate mainly to matters other than the carpet and the lack of heater. In relation to the latter, their main concern was a lack of ability to cool the unit rather than heat it.
There is a strong argument that the tenants are entitled to a higher award of compensation than the balance available from the bond. On the other hand, had the bond been refunded in full at the end of the tenancy, it is highly likely they would have been satisfied with the outcome. Taking all these factors into account, I find that the merits and justice of the case are met by awarding the bond back to the tenants in full, without any further financial adjustment. Filing fee and publication
Both parties have had minimal success with their own claim, but a larger degree of success in defending the claim against them. For that reason, any refund of the filing fees would cancel each other out and no award is made for either party.
The tenants have applied for name suppression, but the landlords have not. Although the tenants had limited success with their own claim, they were substantially successful in defending the landlords’ claim. Taking this into account, along with their personal circumstances, I have ordered name suppression under s 95A(4) RTA. J P Smith 06 December 2023

Claims and awards in Tenancy Tribunal application 4597349 — net $306.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Adjustment for additional water payment	$91.92	Adjustment for additional water payment
Compensation	$214.18	Compensation
Net award	$306.10
Total payable by Landlord to Tenant	$306.10

Order

Marie Louise Olivier and Kevin Olivier must pay [The tenant/s] $306.10 immediately from the bond, as calculated in table below:
The Bond Centre is to pay the balance of the bond of $306.10 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing: the tenants by teleconference.
Both parties made claims against the other. The matters were first heard on 6 September 2023. The landlords’ claim was finalised in an order dated 8 September 2023 (which was not published), and the tenants’ claim adjourned for a further hearing. The bond was partially refunded to the tenants, and the balance held at the Bond Centre pending the outcome of the tenants’ claim. Landlords’ claim: adjustment for water
In the previous order I made findings about rent and water. When reviewing the landlords’ financial records, it appeared that the tenants had made an additional water payment of $91.92 that was not taken into account. As the payment was not discussed at the hearing, the issue was reserved for further discussion at the adjourned hearing.
I find that the additional payment was made and that the amount owing for rent water needs to be adjusted accordingly. Tenants’ claim: Misrepresentation
The tenants say the landlords failed to tell them that there would be extensive roadworks outside the unit. They say they endured many months of noise and dust from pneumatic drills and heavy machinery. To reduce the noise, they closed the windows facing the road, which caused the unit to be excessively hot during the warmer months. The landlords say they were unaware of the impending roadworks and that the tenants never complained about the issue during the tenancy.
Because the landlords had no control over the roadworks, they did not breach the tenants’ right to reasonable peace comfort or privacy under s 38(2) Residential Tenancies Act 1986.
The Tribunal does have powers to make orders where a tenancy agreement has been induced by a misrepresentation (ss 78(1)(g) and (h) RTA). However, there is insufficient evidence to prove misrepresentation in this case. If the tenants had found the situation to be unbearable during the tenancy, they could have applied for early termination of the fixed term under 66 RTA. Failure to repair:
Section 45(1)(b) RTA provides that a landlord must provide and maintain the premises in a reasonable state of repair.
Carpet ‘tacks’: The tenants notified that landlords that there were tacks in the carpet edge next to the kitchen vinyl. The sharp objects were most likely from the carpet ‘smooth edge’. In a text message dated 28 June 2022, the landlords said they would fix the tacks on the floor. They did not do so. The landlords say the tenants said they had fixed the problem, which the tenants deny.
I accept the tenants’ evidence that they did not tell the landlords the problem was resolved. Although the landlords say none of the previous tenants had complained about the tacks, they should have completed the repair.
Gap at front door: The tenants say there was a gap between the front door and door frame that caused excessive draughts. They say they had to block the draughts with towels and packs of toilet paper. In the same text message on 28 June, the landlords said they would “insulate” the front door. Again, they did not do so. The landlords say that a healthy homes report commissioned after the end of the tenancy found the front door to be compliant with draught-stopping standards.
Although the tenants’ photos show an obvious gap, there is insufficient evidence to show that the door did not meet the required standard. Therefore, although the landlords did not do what they said they would do, there is insufficient evidence to prove a breach.
Blocked bathroom sink: The tenants say the bathroom sink was slow to drain. They did not notify the landlord and attempted to fix the problem themselves. As they did not notify the landlords of the need for repair, they have not proved a breach.
Internal doors: The tenants say three of the internal doors did not shut properly. They notified the landlords, but later told them they had fixed the problem. Therefore, they have not proved a failure to repair. Breach of healthy homes standards:
Ventilation standards: The tenants say the smaller bedroom failed to comply with the ventilation standard, which requires all habitable spaces to have a window, skylight or door that opens to the outside (r 21 Residential Tenancies (Healthy Homes Standards) Regulations 2019). They say that neither the window nor the skylight was openable, and they questioned whether the room was in fact a bedroom.
The landlords’ healthy homes report confirms that the room is a bedroom and says it is compliant because, although the window does not open, the skylight is openable. The landlords say the skylight opens with a pole, and that a pole was left at the premises. The tenants deny this, but there is no evidence that they raised the issue of ventilation with the landlords during the tenancy. Had they done so, their concerns would have been easily resolved. The tenants suggested that the landlords could have modified the skylight after the end of the tenancy. However, there is no evidence to rebut the landlords’ evidence that they did not.
Heating standard: The tenants say that the landlords did not provide a heat pump in the living room (r 8 HHS). The landlords acknowledge that they did not provide an approved form of heating.
The main concern for the tenants is that a heat pump would have provided them with air-conditioning during the warmer months, when they had to close windows to keep out the dust and noise. However, that is not the purpose of the standard, which is to provide a means of heating during the colder months. The landlords’ healthy homes assessment confirms that the electric heater subsequently installed meets the requirements of a qualifying heater.
Although the tenants gave evidence at the hearing that the unit was “freezing” during the winter (in part due to the gap at the front door), that concern is not reflected in any of the documentary evidence filed. The landlords say they did not comply with the standard because the unit is warm and none of their previous tenants have needed a heater. That is no excuse for non-compliance. It is however a factor that can be taken into account in assessing compensation. Entry without notice
The tenants say that, on several occasions the landlords entered the premises without giving the required 24 or 48 hour notice. Instead, they phoned an hour or so beforehand asking if they could come around. Section 48 RTA permits a landlord to enter premises where they have given the requisite notice, or where the tenant has freely given their consent immediately before the entry.
The landlords deny entry without written notice but have not provided copies any of the requisite notices. Therefore, I accept that on more than one occasion the landlords entered having given a short period of oral notice. That said, the main purpose of the visits was to discuss repair issues and I also accept that the tenant allowed entry on each occasion. The tenants say they allowed entry so as not to create waves, which is an issue that landlords need to be mindful of as consent must be freely given. However, I find that no breach occurred.

How much compensation should be awarded?

I have made a finding that the landlords breached the duty to repair in a minor way, and the heating healthy homes standard in a more significant way.
After deducting the water adjustment from the remaining the bond, a balance of $214.18 remains. The tenants have applied for compensation rather than exemplary damages. Had they applied for the latter, it is likely I would have made a moderate award for breaching the healthy homes standard. However, as matters stand, I am limited to awarding compensation.
Although the tenants have expressed major concerns about their tenancy, they relate mainly to matters other than the carpet and the lack of heater. In relation to the latter, their main concern was a lack of ability to cool the unit rather than heat it.
There is a strong argument that the tenants are entitled to a higher award of compensation than the balance available from the bond. On the other hand, had the bond been refunded in full at the end of the tenancy, it is highly likely they would have been satisfied with the outcome. Taking all these factors into account, I find that the merits and justice of the case are met by awarding the bond back to the tenants in full, without any further financial adjustment. Filing fee and publication
Both parties have had minimal success with their own claim, but a larger degree of success in defending the claim against them. For that reason, any refund of the filing fees would cancel each other out and no award is made for either party.
The tenants have applied for name suppression, but the landlords have not. Although the tenants had limited success with their own claim, they were substantially successful in defending the landlords’ claim. Taking this into account, along with their personal circumstances, I have ordered name suppression under s 95A(4) RTA. J P Smith 06 December 2023

Tenancy Tribunal case 4597349 — Tenancy dispute

At a glance

Tenancy Tribunal case 4597349 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

How much compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions