What was Tenancy Tribunal case 4601989 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4601989?

Compensation 02/09/23 to 05/10/23: H…: $971.43 awarded to tenant; Compensation 04/03/23 to 01/09/23: A…: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimburse rent 03/03/23: At Home and…: $74.29 awarded to tenant

What type of tenancy dispute was case 4601989?

The dispute type was not classified.

Where can I read the official tribunal order for case 4601989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9592687-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4601989 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4601989?

Compensation 02/09/23 to 05/10/23: H…: $971.43 awarded to tenant; Compensation 04/03/23 to 01/09/23: A…: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimburse rent 03/03/23: At Home and…: $74.29 awarded to tenant

What type of tenancy dispute was case 4601989?

The dispute type was not classified.

Where can I read the official tribunal order for case 4601989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9592687-Tribunal_Order_Redacted.pdf.

83A Fraser Street, Tauranga South, Tauranga 3112 Tenancy Tribunal Case 4601989 — Tenancy dispute

Tenantcheck Insights

83A Fraser Street, Tauranga South, Tauranga 3112 Tenancy Tribunal Case 4601989 — Tenancy dispute | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4601989 — net $4,566.16 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimburse rent 03/03/23: At Home and Helsby	$74.29	Reimburse rent 03/03/23: At Home and Helsby
Compensation 04/03/23 to 01/09/23: At Home and Helsby	$3,500.00	Compensation 04/03/23 to 01/09/23: At Home and Helsby
Compensation 02/09/23 to 05/10/23: Helsby	$971.43	Compensation 02/09/23 to 05/10/23: Helsby
Filing fee reimbursement: At Home and Helsby	$20.44	At Home and Helsby
Net award	$4,566.16
Total payable by Landlord to Tenant	$4,566.16

Claims and awards for application 4601989 — net $4,566.16 NZD. Verify on MoJ.

Reimburse rent 03/03/23: At Home and Helsby

Amount: $74.29
Awarded to: Tenant
Reason: Reimburse rent 03/03/23: At Home and Helsby

Compensation 04/03/23 to 01/09/23: At Home and Helsby

Amount: $3,500.00
Awarded to: Tenant
Reason: Compensation 04/03/23 to 01/09/23: At Home and Helsby

Compensation 02/09/23 to 05/10/23: Helsby

Amount: $971.43
Awarded to: Tenant
Reason: Compensation 02/09/23 to 05/10/23: Helsby

Filing fee reimbursement: At Home and Helsby

Amount: $20.44
Awarded to: Tenant
Reason: At Home and Helsby

Net award

Tenant $4,566.16

Total payable by Landlord to Tenant

Tenant $4,566.16

Claim types — money lines allowed on this order

Compensation Filing Fee

Order

The Tribunal orders suppression of the tenant’s name and identifying details.
At Home Realty Pty Limited Trading As At Home Property Management As Agent For Faith Helsby must pay [the tenant] $4,520.44 immediately, calculated as shown in table below:
At Home Realty Pty Limited Trading As At Home Property Management As Agent For Faith Helsby must pay [the tenant] $4,520.44 immediately, calculated as shown in table below:
The amount awarded may be offset against rent.
Faith Helsby must carry out the following work to the premises within 2 months of the date of this order: a. Install a compliant extractor fan in the bathroom at 83A Fraser Street, Tauranga b. Install a compliant extractor fan or range hood in the kitchen at 83A Fraser Street, Tauranga. c. Investigate and carry out necessary repairs to the drainage at 83A Fraser Street, Tauranga, including: a. Repair or replace the gutter on the house adjacent to the kitchen. b. Carry out the necessary work to ensure that the downpipe on the north-eastern side of the house drains storm water to an appropriate outlet and not under the house. c. Carry out any necessary work to ensure that excessive storm water does not accumulate around the garage. d. Investigate whether the house meets draught stopping standards in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HHR”) and carry out any necessary remedial work if it does not. e. Repair the latch plate on the front door lock. f. Repair the kitchen bench and cabinet to ensure that water drains to the sink. g. Investigate the cause of dampness and mould in the two bedrooms and carry out any remedial work identified. h. Trim dead fronds from the large palm tree.
Until the work is completed in accordance with order 5, rent will as abate as follows from 6 October 2023 until the week in which the work is completed: a. 5(a) and (b) $100.00 per week. b. 5(c) $50.00 per week c. 5(d) to (h) $10.00 per week for each work order. d. For the avoidance of doubt, rent will abate for the whole of the week in which work is completed.
If the landlord fails to comply with the work order in order 5 within 2 months of the date of this order, the tenant may apply for further orders to undertake the work and charge the landlord the cost of the work (to be offset against rent payable). Any such application is to be accompanied by quotes or estimates for the cost of the work.

Reasons

All parties attended the hearing. Miss Helsby attended by teleconference from overseas.
The tenant has applied for work orders and compensation. At Home filed a counterclaim as agent for the owner, but it withdrew the claim prior to the hearing date.
The names of the parties were amended in the adjournment order of 6 September 2023, to record that both the agent (At Home) and the owner (Faith Helsby) were named as landlords. For convenience I will refer to the parties as tenant, agent, and owner (or the landlord collectively to refer to the owner and agent where appropriate). Brief background
The tenancy started on 3 March 2023. The tenancy agreement names At Home Property Management as “intermediary” between the owner and tenant and as acting “as agent for” and on “account of” the landlord. The owner lives overseas.
The agent did not provide the tenant with the keys on the commencement date, and the tenant moved in the following day on 4 March.
The tenant says the house was not reasonably clean at the start of the tenancy and the tenancy agreement contained numerous inaccuracies regarding the description of the property and fixtures, compliance with healthy homes standards, and the condition of the property. He provided the agent with a detailed list of issues regarding the condition of the property.
The tenant has had numerous issues with draughts, dampness, flooding, lack of compliant ventilation, and other maintenance issues. He has sent several 14-day notices to the agent.
The agent’s agency agreement with the owner ended on or about 1 September 2023. The owner sent the agent a one-month termination notice on 29 August, and the agent replied on 1 September effectively waiving the notice period. The owner has not formally appointed a replacement agent, although she has arranged for a new agent to start once these proceedings are completed. Law
Under section 45(1)(a) to (ca) Residential Tenancies Act 1986, a landlord has an obligation to provide and maintain the premises in a reasonable state of repair; comply with statutory requirements as to buildings, health and safety; and comply with healthy homes standards.
The previous tenancy started prior to 1 July 2021. Therefore, compliance with healthy homes standards (HHS) was required 120 days after the start of the current tenancy (Residential Tenancies (Healthy Homes Standards) Regulations 2019, Schedule 1, Part 1). The premises should have been compliant from 1 July 2023.
Even though the HHS did not take effect until 1 July, the tenancy was still covered by the Housing Improvement Regulations 1947 (HIR), which require homes to be free from dampness (reg 15), have adequate downpipes and drainage to the satisfaction of the local authority (reg 14(2)), and for the premises and all appurtenances and appliances to be kept in a reasonable state of repair (reg 18(1)). Commencement date
The tenancy was due to start on 3 March. The landlord was required to provide vacant possession on this date (s 37 RTA) but failed to do so. The agent was to provide a copy of the rent summary after the conclusion of the hearing to clarify whether the tenant was credited for a day’s rent. The rent summary was not provided and, in the absence of evidence to the contrary, I have credited the tenant one day’s rent. HHS ventilation standards
The HHS require that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
A healthy homes assessment dated 22 June 2020, reported that the house was compliant apart from the lack of kitchen and bathroom extraction. The agent obtained a quote for installing extractor fans shortly after the assessment was received, but the work was not done at that time. In February 2023, the agent reminded the owner that the extractor fans had not been installed and asked for approval to proceed with the work. There was a delay in contracting the installation as the owner wanted a rangehood in the kitchen rather than an extraction fan. However, she gave her approval on 19 April 2023.
The agent instructed its preferred contractor to do the work on 21 April, but it was not completed by 1 July, even though the owner paid a deposit. The agent sent the contractor requests for an update on 11 July, 13 July, and 8 August. On 9 August, the contractor replied that it was finalising a plan with the electrician. The work was not completed by the time the agency agreement was cancelled, and the agent subsequently cancelled the work order.
The landlord has clearly breached this requirement. Although the tenant has not applied for exemplary damages, it is appropriate that compensation be awarded for the non-compliance. Drainage
The HHS require that residential premises must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes, and drains.
The 2020 Healthy Homes Assessment said the house was compliant. On 27 April, the tenant advised agent the garage was flooding when it rained. On 8 May, the tenant emailed the owner about flooding in the garage and damage to his property stored there. On 11 May, he sent the agent a 14-day notice asking for drainage and guttering to be fixed, and compensation towards the cost of disposing of damaged goods and for his insurance excess.
Between May and July, the tenant sent the agent and owner several reminders about the overflowing gutters, downpipes discharging onto the ground, stormwater flowing under the house and around the garage, and the garage flooding. He sent photos and videos.
On or about 3 August, work started on providing drainage for the garage downpipes. On 16 August, the tenant notified the owner that the area around the garage was still flooding due to the gutter on the side of the house overflowing. He says downpipes on the house still send water under the house and towards the garage.
Although the issue of flooding has been partially fixed, further work is required for the house to comply with the HHS and HIR. Draught-stopping
The HHS require that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, and which allow draughts to occur. The 2020 Healthy Homes Assessment said the house was compliant.
On 8 July, the tenant sent the agent a 14-day notice for failing to deal with draught- stopping satisfactorily.
The agent arranged for a handyman to install draught-stopping foam to the windows. On 17 July, the tenant advised agent that several windows were not draught-stopped, and some windows were only stopped along one edge. The agent sent the handyman back to do additional work. The tenant advised that the draught-stopping was still not effective. He provided a video of a ‘candle test’ for the front door and main bedroom window, showing draughts still getting into the house. The agent disagreed that the work was unsatisfactory.
The owner employed a contractor to provide double-glazing in the bedroom, and he provided a report that the work done by the agent’s contractor was poor, with some windows not done, and some only partially sealed. The contractor recommended that the work be redone and quoted $1,999.00.
The tenant has provided photos and videos of gaps and of the ‘candle test’. Based on this evidence, and the report from the owner’s contractor, I find it is likely that further work is required to make the house compliant, notwithstanding the 2020 healthy homes report. While I acknowledge the agent’s submission that the owner’s contractor has a commercial interest in commenting on the previous contractor’s workmanship, there is other supporting evidence. Dampness
The tenant provided photographs of mould and condensation on the bedroom walls. He says his dehumidifier collects 5.5L of water daily.
On 9 July, the tenant emailed agent about mould, and said he had moved out of the main bedroom. The agent replied that mould was not an issue during the previous tenancy and that the tenant should open windows to air the house out.
It can be difficult to identify the cause of mould, as it could result from inherent problems with the premises or from the way a tenant manages ventilation.
Here there are several possible contributing factors relating to the house: lack of extractor fans in the kitchen and bathroom, and stormwater draining under the house. Therefore, I find that there is a breach of the HIR.
The problem may be largely resolved once the ventilation and drainage standards are complied with. If not, the landlord should make whatever other inquiries are necessary to determine whether issues with the house are causing dampness and mould. General maintenance
Locks: Section 46(1) RTA requires a landlord to provide and maintain locks to ensure the premises are reasonably secure. The tenant notified the agent on 21 July that the front door was no longer lockable after draught-stopping seal was put around the door. He removed the latch-plate as a temporary measure so that it could be locked and asked that the lock be properly fixed. This has not been done and needs to be done.
Kitchen sink: The cabinets under the bench have slumped, resulting in water running away from the sink. The cabinets are not in a reasonable state of repair and this issue needs to be fixed.
Palm tree: There are a large number of dead fronds on a large palm tree at the back of the section. The tenant says they regularly fall down, onto the roof and around the property. He says fronds have sharp spikes that are unsafe, and they are inconvenient to remove. A landlord is required to maintain the premises, which includes pruning and trimming trees and shrubs where necessary. I find that the tenant’s complaint is reasonable and that the palm should be trimmed.

What compensation should be ordered?

Damage to goods: The tenant has not made an insurance claim for damage to the goods in the garage and has not provided any supporting evidence of the damage, the terms of his insurance policy, or likely costs. In the absence of any supporting evidence, I have not awarded any compensation.
General compensation: The tenant has requested either a full refund of rent, or at least compensation of $100.00 per week from the start of the tenancy to 11 June (when he moved out of the main bedroom), and a further $100.00 a week from that date onwards.
The tenant has suffered from a multiplicity of breaches, and I find that an average of $100.00 a week is a reasonable assessment of compensation from the date the tenancy started to the date the HHS came into effect. I have awarded a further $100.00 per week from that date onwards. Had the tenant applied for exemplary damages, it is likely the financial consequences of the breaches would have been higher.
As at the hearing date, the tenant had not paid any rent from the date the agent’s management ceased. He says he has not received the required notices advising him who to pay rent to. The compensation awarded can be offset against his rent liability, noting that his rent liability is reduced until the work orders are completed.

Should a work order be made?

I have made work orders covering the breaches previously identified. Some of the work is easily specified, e.g., installing compliant extractor fans. In other cases, the scope of the work required is not exactly clear from the evidence, so I have worded the orders in more general terms.
The Tribunal is required to make a monetary alternative to compliance with a work order. However, there is insufficient evidence to make a lump sum award. I have therefore, restricted the monetary orders at this stage to rent deductions until the work is done. The deduction scheme may seem complicated, but it is intended to cover the likelihood that different aspects of the work may be completed across different timescales. It also covers the possibility that some of the work may have been done between the date of the hearing and the date of the order.
If the work is not completed within 2 months, the tenant can apply for a further order for a monetary alternative, or for an order authorising him to undertake the work and charge the landlord the costs of doing so.

Should the compensation orders be against the owner, the agent, or both?

Section 77(1) RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants, and the Tribunal must determine whether both the owner and agent are landlords.
Section 2(1) RTA defines the meaning of landlord as: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes- ... (e) an agent of the landlord" [emphasis added]
The owner of the property will usually be the grantor of the tenancy, and that is clearly the case here.
The Tribunal cannot make an order against the agent unless it is also a ‘landlord’. In its submissions, the agent referred to the terms of the agency agreement with the owner and in particular the statement that it would act on behalf of the owner “as if” it were the landlord. The agreement with the owner is of limited relevance to the relationship between the agent and tenant, although the indemnity clause 5(c), in which the owner has indemnified the agent against any claims, suggests the possibility of agent liability to the tenant.
In deciding whether the agent is liable, the Tribunal has to consider principles of agency. There are two relevant sources of agency law: the common law rules of agency (“agency law”), and the extended definition of landlord in s 2(1) RTA
If, under agency law, the agent is a ‘landlord’, then it will be a party to the proceedings and liable to the tenant.

What are the relevant common law rules?

The primary common law rule is that an agent who merely acts as an intermediary for a principal (the owner) is not a party to the contract between the principal and the other party (the tenant). Whether an agent is acting as an intermediary depends on the intention of the parties, which is determined objectively from the words used in the contract and the background facts.
An agent who puts their unqualified name on a contract will usually be personally liable, even if the other party knows they are acting as an agent. Use of the term ‘agent’ will not necessarily displace this presumption, as this is a descriptive term that does not necessarily indicate the capacity in which the agent has signed the contract. In these circumstances, both the agent and the principal can sue or be sued on the contract. On the other hand, use of qualifying words such as ‘as agent for’ on ‘on behalf of’ will usually be taken to mean the agent is acting as an intermediary.

Does the extended definition of landlord apply to the agent?

The tenancy agreement describes the agent as an intermediary acting on behalf of the landlord (owner). Therefore, on the face of it, under agency law, the agent is not a landlord.
However, the wording of the agreement is not necessarily definitive. There are two possible approaches to holding the agent liable as a landlord. Firstly, contracts are interpreted objectively according to their language and the background circumstances. Therefore, where an agent takes on the full responsibilities of a landlord, the circumstances may rebut the inference from the language of the agreement that they are only acting as an intermediary.
Secondly, the agent, where appropriate, may be liable under the extended definition of landlord in s 2(1) RTA.
The Tribunal has not taken a consistent position on the extended definition. For example, in In Hayward v Lambton Property Management Limited [2012] NZTT, Lower Hutt, 11/01694/LH, the Tribunal said there were sound policy reasons why the definition of landlord should be extended to include the agent, and that there was no limitation on the term “where appropriate”. In Lovell v At Home Rentals Limited [2018] NZTT Tauranga, 4112773, the Tribunal found both the agent and owners liable, even though the tenancy agreement described the agent as “an agent for” the owners. Relevant factors included: the owners were overseas, the agent was responsible for managing all aspects of the tenancy, and some of the tenant’s complaints related specifically to the acts and omissions of the agent.
A contrary view was taken in the recent case of Chief Executive of MBIE v Lee Bennett Holdings Limited and Others [2022] NZTT 4310424, and 25 others. There the Tribunal disagreed with conclusion in Lovell that the words “where appropriate” allow for an agent to be liable in circumstances where they would not be liable under agency law. The Tribunal said this approach is inconsistent with the District Court decision in Mumby v Gary Brown Realty Ltd [2011] DCR 420, where the Court said, “the law is no different for agents under the Residential Tenancies Act than agents acting in any other capacity”.
The Tribunal went on to say that, while it may be appropriate to use the extended definition for matters such as serving notices or taking proceedings, it was not appropriate for liability. The latter point appears however to be inconsistent with the District Court decision in Harcourts Accommodation Centre Ltd v Barker (DC, Christchurch, M56/93, 16 March 1993), where the Court held that an “undisclosed” agent should not have brought a claim against the tenant after the end of the tenancy.
Some commentaries have endorsed the narrow approach to interpreting the definition of landlord, relying primarily on the quote from Mumby, saying that words “where appropriate” mean “where appropriate according to the law of agency”. However, the quote from Mumby relied on has been taken out of context, as it was not made in relation to the definition of landlord in s 2(1), but rather an error made by the Tribunal in applying agency law when finding an agent not liable to the tenant. At paras 30 and 31, the Court said: [30] The findings of the tenancy adjudicator in respect to the liability appear to be premised, on his view, as expressed in his “Background” – that if a tenant is aware that the agent is acting for the landlords then liability rests with the landlords and no liability attaches to the agent. [31] This in fact is not the legal position in respect to agents, and the law is no different for agents acting under the Residential Tenancies Act than agents acting in any other capacity.
The Court went on to approve the principle stated in a Privy Council case that: ... an agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as an agent ...
The Court found the agent liable under agency law and did not need to consider whether it was liable under the extended definition of landlord in s 2(1). Therefore, the decision cannot be relied on as binding authority that s 2(1) does not extend the liability of an agent beyond existing agency law principles.
There are many objections to the narrow approach to interpreting the extended definition of landlord. First, it involves reading words into s 2(1) that are not necessary for the provision to be effective.
Secondly, the purpose provision of the RTA states that it is an “An Act to reform and restate the law relating to residential tenancies ...”. There are many aspects of the RTA that modify common law principles of contract, so there is nothing inherently unusual about s 2(1) modifying agency law. If Parliament’s intent was to merely restate existing agency law, it did not need to refer to agents at all in the extended definition of ‘landlord’, as their status would be determined by agency law anyway.
Thirdly, some of the District and High decisions implicitly support a broader interpretation of s 2(1). In Edinburgh Realty Ltd v Gray (DC, Dunedin, TT1080 & 1082/97, 8 April 1998) the District Court referred to the wording in s 2(1) in deciding it was not appropriate to extend the definition of landlord to an agent who was not in the business of letting premises, and who was clearly acting as an intermediary for the owner in communicating the owner’s wishes to the tenant. In Mosley v Stewart and Huston [2017] NZDC 14694, the District Court said the effective landlord could have been either the owner or agent (although the extended definition provides for an agent to be a landlord in addition to the grantor of the tenancy). In Rauti v Tamaki Regeneration Limited [2017] NZHC 2326, the District Court had referred to s 2(1) as extending the definition of landlord, and the High Court agreed that the words “where appropriate” mean “where the context makes it appropriate” (without any further limitation).
Fourthly, the narrow interpretation cuts across day-to-day practice within the letting industry, where most claims involving fully managed properties are brought by and against the agent. In Mumby, even though the agent was found to be a landlord based on the terms of the contract, the Court also took into account the other background circumstances in determining the issue: a bond lodgement letter from the Bond Centre referred to the agent as landlord, the agent was involved in inspections, the agent dealt with the tenant's inquiries and complaints, and the agent issued a termination notice. These are common features of all managed tenancies.
Fifthly, other provisions of the RTA may point to an agent being a landlord in particular circumstances. For example, s 16A RTA requires a landlord to appoint an agent when they are overseas for more than 21 days, and subs (5) provides that an agent appointed under this provision has all the “rights and obligations of the landlord”. This situation applies here.
Taking all these factors into account, I find that the agent is a landlord and is jointly and severally liable with the owner during the term of the agency. Although there was a great deal of correspondence directly between the owner and the tenant and the agent’s contractors, this was primarily due to the breakdown in communication between the owner and agent, and the effect this was having on compliance.
Because the agency agreement ended on 1 September, I have ordered that both the agent and owner are jointly liable up to that date, and the owner is solely liable from then on.
Because the Tribunal only deals with claims between landlord and tenant, any disputed issues of contribution between the owner and agent would need to be dealt with in a different venue (e.g., the Disputes Tribunal). Filing fee and name suppression
Because the tenant has largely succeeded with the claim, I have reimbursed the filing fee and ordered name suppression. J P Smith 01 November 2023

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4601989 — net $4,566.16 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimburse rent 03/03/23: At Home and Helsby	$74.29	Reimburse rent 03/03/23: At Home and Helsby
Compensation 04/03/23 to 01/09/23: At Home and Helsby	$3,500.00	Compensation 04/03/23 to 01/09/23: At Home and Helsby
Compensation 02/09/23 to 05/10/23: Helsby	$971.43	Compensation 02/09/23 to 05/10/23: Helsby
Filing fee reimbursement: At Home and Helsby	$20.44	At Home and Helsby
Net award	$4,566.16
Total payable by Landlord to Tenant	$4,566.16

Claims and awards for application 4601989 — net $4,566.16 NZD. Verify on MoJ.

Reimburse rent 03/03/23: At Home and Helsby

Amount: $74.29
Awarded to: Tenant
Reason: Reimburse rent 03/03/23: At Home and Helsby

Compensation 04/03/23 to 01/09/23: At Home and Helsby

Amount: $3,500.00
Awarded to: Tenant
Reason: Compensation 04/03/23 to 01/09/23: At Home and Helsby

Compensation 02/09/23 to 05/10/23: Helsby

Amount: $971.43
Awarded to: Tenant
Reason: Compensation 02/09/23 to 05/10/23: Helsby

Filing fee reimbursement: At Home and Helsby

Amount: $20.44
Awarded to: Tenant
Reason: At Home and Helsby

Net award

Tenant $4,566.16

Total payable by Landlord to Tenant

Tenant $4,566.16

Claim types — money lines allowed on this order

Compensation Filing Fee

Order

The Tribunal orders suppression of the tenant’s name and identifying details.
At Home Realty Pty Limited Trading As At Home Property Management As Agent For Faith Helsby must pay [the tenant] $4,520.44 immediately, calculated as shown in table below:
At Home Realty Pty Limited Trading As At Home Property Management As Agent For Faith Helsby must pay [the tenant] $4,520.44 immediately, calculated as shown in table below:
The amount awarded may be offset against rent.
Faith Helsby must carry out the following work to the premises within 2 months of the date of this order: a. Install a compliant extractor fan in the bathroom at 83A Fraser Street, Tauranga b. Install a compliant extractor fan or range hood in the kitchen at 83A Fraser Street, Tauranga. c. Investigate and carry out necessary repairs to the drainage at 83A Fraser Street, Tauranga, including: a. Repair or replace the gutter on the house adjacent to the kitchen. b. Carry out the necessary work to ensure that the downpipe on the north-eastern side of the house drains storm water to an appropriate outlet and not under the house. c. Carry out any necessary work to ensure that excessive storm water does not accumulate around the garage. d. Investigate whether the house meets draught stopping standards in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HHR”) and carry out any necessary remedial work if it does not. e. Repair the latch plate on the front door lock. f. Repair the kitchen bench and cabinet to ensure that water drains to the sink. g. Investigate the cause of dampness and mould in the two bedrooms and carry out any remedial work identified. h. Trim dead fronds from the large palm tree.
Until the work is completed in accordance with order 5, rent will as abate as follows from 6 October 2023 until the week in which the work is completed: a. 5(a) and (b) $100.00 per week. b. 5(c) $50.00 per week c. 5(d) to (h) $10.00 per week for each work order. d. For the avoidance of doubt, rent will abate for the whole of the week in which work is completed.
If the landlord fails to comply with the work order in order 5 within 2 months of the date of this order, the tenant may apply for further orders to undertake the work and charge the landlord the cost of the work (to be offset against rent payable). Any such application is to be accompanied by quotes or estimates for the cost of the work.

Reasons

All parties attended the hearing. Miss Helsby attended by teleconference from overseas.
The tenant has applied for work orders and compensation. At Home filed a counterclaim as agent for the owner, but it withdrew the claim prior to the hearing date.
The names of the parties were amended in the adjournment order of 6 September 2023, to record that both the agent (At Home) and the owner (Faith Helsby) were named as landlords. For convenience I will refer to the parties as tenant, agent, and owner (or the landlord collectively to refer to the owner and agent where appropriate). Brief background
The tenancy started on 3 March 2023. The tenancy agreement names At Home Property Management as “intermediary” between the owner and tenant and as acting “as agent for” and on “account of” the landlord. The owner lives overseas.
The agent did not provide the tenant with the keys on the commencement date, and the tenant moved in the following day on 4 March.
The tenant says the house was not reasonably clean at the start of the tenancy and the tenancy agreement contained numerous inaccuracies regarding the description of the property and fixtures, compliance with healthy homes standards, and the condition of the property. He provided the agent with a detailed list of issues regarding the condition of the property.
The tenant has had numerous issues with draughts, dampness, flooding, lack of compliant ventilation, and other maintenance issues. He has sent several 14-day notices to the agent.
The agent’s agency agreement with the owner ended on or about 1 September 2023. The owner sent the agent a one-month termination notice on 29 August, and the agent replied on 1 September effectively waiving the notice period. The owner has not formally appointed a replacement agent, although she has arranged for a new agent to start once these proceedings are completed. Law
Under section 45(1)(a) to (ca) Residential Tenancies Act 1986, a landlord has an obligation to provide and maintain the premises in a reasonable state of repair; comply with statutory requirements as to buildings, health and safety; and comply with healthy homes standards.
The previous tenancy started prior to 1 July 2021. Therefore, compliance with healthy homes standards (HHS) was required 120 days after the start of the current tenancy (Residential Tenancies (Healthy Homes Standards) Regulations 2019, Schedule 1, Part 1). The premises should have been compliant from 1 July 2023.
Even though the HHS did not take effect until 1 July, the tenancy was still covered by the Housing Improvement Regulations 1947 (HIR), which require homes to be free from dampness (reg 15), have adequate downpipes and drainage to the satisfaction of the local authority (reg 14(2)), and for the premises and all appurtenances and appliances to be kept in a reasonable state of repair (reg 18(1)). Commencement date
The tenancy was due to start on 3 March. The landlord was required to provide vacant possession on this date (s 37 RTA) but failed to do so. The agent was to provide a copy of the rent summary after the conclusion of the hearing to clarify whether the tenant was credited for a day’s rent. The rent summary was not provided and, in the absence of evidence to the contrary, I have credited the tenant one day’s rent. HHS ventilation standards
The HHS require that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
A healthy homes assessment dated 22 June 2020, reported that the house was compliant apart from the lack of kitchen and bathroom extraction. The agent obtained a quote for installing extractor fans shortly after the assessment was received, but the work was not done at that time. In February 2023, the agent reminded the owner that the extractor fans had not been installed and asked for approval to proceed with the work. There was a delay in contracting the installation as the owner wanted a rangehood in the kitchen rather than an extraction fan. However, she gave her approval on 19 April 2023.
The agent instructed its preferred contractor to do the work on 21 April, but it was not completed by 1 July, even though the owner paid a deposit. The agent sent the contractor requests for an update on 11 July, 13 July, and 8 August. On 9 August, the contractor replied that it was finalising a plan with the electrician. The work was not completed by the time the agency agreement was cancelled, and the agent subsequently cancelled the work order.
The landlord has clearly breached this requirement. Although the tenant has not applied for exemplary damages, it is appropriate that compensation be awarded for the non-compliance. Drainage
The HHS require that residential premises must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes, and drains.
The 2020 Healthy Homes Assessment said the house was compliant. On 27 April, the tenant advised agent the garage was flooding when it rained. On 8 May, the tenant emailed the owner about flooding in the garage and damage to his property stored there. On 11 May, he sent the agent a 14-day notice asking for drainage and guttering to be fixed, and compensation towards the cost of disposing of damaged goods and for his insurance excess.
Between May and July, the tenant sent the agent and owner several reminders about the overflowing gutters, downpipes discharging onto the ground, stormwater flowing under the house and around the garage, and the garage flooding. He sent photos and videos.
On or about 3 August, work started on providing drainage for the garage downpipes. On 16 August, the tenant notified the owner that the area around the garage was still flooding due to the gutter on the side of the house overflowing. He says downpipes on the house still send water under the house and towards the garage.
Although the issue of flooding has been partially fixed, further work is required for the house to comply with the HHS and HIR. Draught-stopping
The HHS require that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, and which allow draughts to occur. The 2020 Healthy Homes Assessment said the house was compliant.
On 8 July, the tenant sent the agent a 14-day notice for failing to deal with draught- stopping satisfactorily.
The agent arranged for a handyman to install draught-stopping foam to the windows. On 17 July, the tenant advised agent that several windows were not draught-stopped, and some windows were only stopped along one edge. The agent sent the handyman back to do additional work. The tenant advised that the draught-stopping was still not effective. He provided a video of a ‘candle test’ for the front door and main bedroom window, showing draughts still getting into the house. The agent disagreed that the work was unsatisfactory.
The owner employed a contractor to provide double-glazing in the bedroom, and he provided a report that the work done by the agent’s contractor was poor, with some windows not done, and some only partially sealed. The contractor recommended that the work be redone and quoted $1,999.00.
The tenant has provided photos and videos of gaps and of the ‘candle test’. Based on this evidence, and the report from the owner’s contractor, I find it is likely that further work is required to make the house compliant, notwithstanding the 2020 healthy homes report. While I acknowledge the agent’s submission that the owner’s contractor has a commercial interest in commenting on the previous contractor’s workmanship, there is other supporting evidence. Dampness
The tenant provided photographs of mould and condensation on the bedroom walls. He says his dehumidifier collects 5.5L of water daily.
On 9 July, the tenant emailed agent about mould, and said he had moved out of the main bedroom. The agent replied that mould was not an issue during the previous tenancy and that the tenant should open windows to air the house out.
It can be difficult to identify the cause of mould, as it could result from inherent problems with the premises or from the way a tenant manages ventilation.
Here there are several possible contributing factors relating to the house: lack of extractor fans in the kitchen and bathroom, and stormwater draining under the house. Therefore, I find that there is a breach of the HIR.
The problem may be largely resolved once the ventilation and drainage standards are complied with. If not, the landlord should make whatever other inquiries are necessary to determine whether issues with the house are causing dampness and mould. General maintenance
Locks: Section 46(1) RTA requires a landlord to provide and maintain locks to ensure the premises are reasonably secure. The tenant notified the agent on 21 July that the front door was no longer lockable after draught-stopping seal was put around the door. He removed the latch-plate as a temporary measure so that it could be locked and asked that the lock be properly fixed. This has not been done and needs to be done.
Kitchen sink: The cabinets under the bench have slumped, resulting in water running away from the sink. The cabinets are not in a reasonable state of repair and this issue needs to be fixed.
Palm tree: There are a large number of dead fronds on a large palm tree at the back of the section. The tenant says they regularly fall down, onto the roof and around the property. He says fronds have sharp spikes that are unsafe, and they are inconvenient to remove. A landlord is required to maintain the premises, which includes pruning and trimming trees and shrubs where necessary. I find that the tenant’s complaint is reasonable and that the palm should be trimmed.

What compensation should be ordered?

Damage to goods: The tenant has not made an insurance claim for damage to the goods in the garage and has not provided any supporting evidence of the damage, the terms of his insurance policy, or likely costs. In the absence of any supporting evidence, I have not awarded any compensation.
General compensation: The tenant has requested either a full refund of rent, or at least compensation of $100.00 per week from the start of the tenancy to 11 June (when he moved out of the main bedroom), and a further $100.00 a week from that date onwards.
The tenant has suffered from a multiplicity of breaches, and I find that an average of $100.00 a week is a reasonable assessment of compensation from the date the tenancy started to the date the HHS came into effect. I have awarded a further $100.00 per week from that date onwards. Had the tenant applied for exemplary damages, it is likely the financial consequences of the breaches would have been higher.
As at the hearing date, the tenant had not paid any rent from the date the agent’s management ceased. He says he has not received the required notices advising him who to pay rent to. The compensation awarded can be offset against his rent liability, noting that his rent liability is reduced until the work orders are completed.

Should a work order be made?

I have made work orders covering the breaches previously identified. Some of the work is easily specified, e.g., installing compliant extractor fans. In other cases, the scope of the work required is not exactly clear from the evidence, so I have worded the orders in more general terms.
The Tribunal is required to make a monetary alternative to compliance with a work order. However, there is insufficient evidence to make a lump sum award. I have therefore, restricted the monetary orders at this stage to rent deductions until the work is done. The deduction scheme may seem complicated, but it is intended to cover the likelihood that different aspects of the work may be completed across different timescales. It also covers the possibility that some of the work may have been done between the date of the hearing and the date of the order.
If the work is not completed within 2 months, the tenant can apply for a further order for a monetary alternative, or for an order authorising him to undertake the work and charge the landlord the costs of doing so.

Should the compensation orders be against the owner, the agent, or both?

Section 77(1) RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants, and the Tribunal must determine whether both the owner and agent are landlords.
Section 2(1) RTA defines the meaning of landlord as: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes- ... (e) an agent of the landlord" [emphasis added]
The owner of the property will usually be the grantor of the tenancy, and that is clearly the case here.
The Tribunal cannot make an order against the agent unless it is also a ‘landlord’. In its submissions, the agent referred to the terms of the agency agreement with the owner and in particular the statement that it would act on behalf of the owner “as if” it were the landlord. The agreement with the owner is of limited relevance to the relationship between the agent and tenant, although the indemnity clause 5(c), in which the owner has indemnified the agent against any claims, suggests the possibility of agent liability to the tenant.
In deciding whether the agent is liable, the Tribunal has to consider principles of agency. There are two relevant sources of agency law: the common law rules of agency (“agency law”), and the extended definition of landlord in s 2(1) RTA
If, under agency law, the agent is a ‘landlord’, then it will be a party to the proceedings and liable to the tenant.

What are the relevant common law rules?

The primary common law rule is that an agent who merely acts as an intermediary for a principal (the owner) is not a party to the contract between the principal and the other party (the tenant). Whether an agent is acting as an intermediary depends on the intention of the parties, which is determined objectively from the words used in the contract and the background facts.
An agent who puts their unqualified name on a contract will usually be personally liable, even if the other party knows they are acting as an agent. Use of the term ‘agent’ will not necessarily displace this presumption, as this is a descriptive term that does not necessarily indicate the capacity in which the agent has signed the contract. In these circumstances, both the agent and the principal can sue or be sued on the contract. On the other hand, use of qualifying words such as ‘as agent for’ on ‘on behalf of’ will usually be taken to mean the agent is acting as an intermediary.

Does the extended definition of landlord apply to the agent?

The tenancy agreement describes the agent as an intermediary acting on behalf of the landlord (owner). Therefore, on the face of it, under agency law, the agent is not a landlord.
However, the wording of the agreement is not necessarily definitive. There are two possible approaches to holding the agent liable as a landlord. Firstly, contracts are interpreted objectively according to their language and the background circumstances. Therefore, where an agent takes on the full responsibilities of a landlord, the circumstances may rebut the inference from the language of the agreement that they are only acting as an intermediary.
Secondly, the agent, where appropriate, may be liable under the extended definition of landlord in s 2(1) RTA.
The Tribunal has not taken a consistent position on the extended definition. For example, in In Hayward v Lambton Property Management Limited [2012] NZTT, Lower Hutt, 11/01694/LH, the Tribunal said there were sound policy reasons why the definition of landlord should be extended to include the agent, and that there was no limitation on the term “where appropriate”. In Lovell v At Home Rentals Limited [2018] NZTT Tauranga, 4112773, the Tribunal found both the agent and owners liable, even though the tenancy agreement described the agent as “an agent for” the owners. Relevant factors included: the owners were overseas, the agent was responsible for managing all aspects of the tenancy, and some of the tenant’s complaints related specifically to the acts and omissions of the agent.
A contrary view was taken in the recent case of Chief Executive of MBIE v Lee Bennett Holdings Limited and Others [2022] NZTT 4310424, and 25 others. There the Tribunal disagreed with conclusion in Lovell that the words “where appropriate” allow for an agent to be liable in circumstances where they would not be liable under agency law. The Tribunal said this approach is inconsistent with the District Court decision in Mumby v Gary Brown Realty Ltd [2011] DCR 420, where the Court said, “the law is no different for agents under the Residential Tenancies Act than agents acting in any other capacity”.
The Tribunal went on to say that, while it may be appropriate to use the extended definition for matters such as serving notices or taking proceedings, it was not appropriate for liability. The latter point appears however to be inconsistent with the District Court decision in Harcourts Accommodation Centre Ltd v Barker (DC, Christchurch, M56/93, 16 March 1993), where the Court held that an “undisclosed” agent should not have brought a claim against the tenant after the end of the tenancy.
Some commentaries have endorsed the narrow approach to interpreting the definition of landlord, relying primarily on the quote from Mumby, saying that words “where appropriate” mean “where appropriate according to the law of agency”. However, the quote from Mumby relied on has been taken out of context, as it was not made in relation to the definition of landlord in s 2(1), but rather an error made by the Tribunal in applying agency law when finding an agent not liable to the tenant. At paras 30 and 31, the Court said: [30] The findings of the tenancy adjudicator in respect to the liability appear to be premised, on his view, as expressed in his “Background” – that if a tenant is aware that the agent is acting for the landlords then liability rests with the landlords and no liability attaches to the agent. [31] This in fact is not the legal position in respect to agents, and the law is no different for agents acting under the Residential Tenancies Act than agents acting in any other capacity.
The Court went on to approve the principle stated in a Privy Council case that: ... an agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as an agent ...
The Court found the agent liable under agency law and did not need to consider whether it was liable under the extended definition of landlord in s 2(1). Therefore, the decision cannot be relied on as binding authority that s 2(1) does not extend the liability of an agent beyond existing agency law principles.
There are many objections to the narrow approach to interpreting the extended definition of landlord. First, it involves reading words into s 2(1) that are not necessary for the provision to be effective.
Secondly, the purpose provision of the RTA states that it is an “An Act to reform and restate the law relating to residential tenancies ...”. There are many aspects of the RTA that modify common law principles of contract, so there is nothing inherently unusual about s 2(1) modifying agency law. If Parliament’s intent was to merely restate existing agency law, it did not need to refer to agents at all in the extended definition of ‘landlord’, as their status would be determined by agency law anyway.
Thirdly, some of the District and High decisions implicitly support a broader interpretation of s 2(1). In Edinburgh Realty Ltd v Gray (DC, Dunedin, TT1080 & 1082/97, 8 April 1998) the District Court referred to the wording in s 2(1) in deciding it was not appropriate to extend the definition of landlord to an agent who was not in the business of letting premises, and who was clearly acting as an intermediary for the owner in communicating the owner’s wishes to the tenant. In Mosley v Stewart and Huston [2017] NZDC 14694, the District Court said the effective landlord could have been either the owner or agent (although the extended definition provides for an agent to be a landlord in addition to the grantor of the tenancy). In Rauti v Tamaki Regeneration Limited [2017] NZHC 2326, the District Court had referred to s 2(1) as extending the definition of landlord, and the High Court agreed that the words “where appropriate” mean “where the context makes it appropriate” (without any further limitation).
Fourthly, the narrow interpretation cuts across day-to-day practice within the letting industry, where most claims involving fully managed properties are brought by and against the agent. In Mumby, even though the agent was found to be a landlord based on the terms of the contract, the Court also took into account the other background circumstances in determining the issue: a bond lodgement letter from the Bond Centre referred to the agent as landlord, the agent was involved in inspections, the agent dealt with the tenant's inquiries and complaints, and the agent issued a termination notice. These are common features of all managed tenancies.
Fifthly, other provisions of the RTA may point to an agent being a landlord in particular circumstances. For example, s 16A RTA requires a landlord to appoint an agent when they are overseas for more than 21 days, and subs (5) provides that an agent appointed under this provision has all the “rights and obligations of the landlord”. This situation applies here.
Taking all these factors into account, I find that the agent is a landlord and is jointly and severally liable with the owner during the term of the agency. Although there was a great deal of correspondence directly between the owner and the tenant and the agent’s contractors, this was primarily due to the breakdown in communication between the owner and agent, and the effect this was having on compliance.
Because the agency agreement ended on 1 September, I have ordered that both the agent and owner are jointly liable up to that date, and the owner is solely liable from then on.
Because the Tribunal only deals with claims between landlord and tenant, any disputed issues of contribution between the owner and agent would need to be dealt with in a different venue (e.g., the Disputes Tribunal). Filing fee and name suppression
Because the tenant has largely succeeded with the claim, I have reimbursed the filing fee and ordered name suppression. J P Smith 01 November 2023

Tenancy Tribunal case 4601989 — Tenancy dispute at 83A Fraser Street, Tauranga South, Tauranga 3112

At a glance

Tenancy Tribunal case 4601989 — Tenancy dispute at 83A Fraser Street, Tauranga South, Tauranga 3112

At a glance

Award balance

Claims & awards

Order

Reasons

What compensation should be ordered?

Should a work order be made?

Should the compensation orders be against the owner, the agent, or both?

What are the relevant common law rules?

Does the extended definition of landlord apply to the agent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What compensation should be ordered?

Should a work order be made?

Should the compensation orders be against the owner, the agent, or both?

What are the relevant common law rules?

Does the extended definition of landlord apply to the agent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions