Published tribunal order
Tenancy Tribunal case 4602392 — Cleanliness at 13A Hayr Road, Three Kings, Auckland 1042
Decided 29 Sept 2023 · Published 29 Sept 2023 · Application 4602392
- Cleanliness
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- The landlord must carry out the following work to the premises, which must be completed by Friday 13 October 2023. a. The bath must be repaired so that it can be used by the tenant b. The gate to the driveway must be repaired and made operational for all to use. c. The leak in the water pipe above the downstairs bedroom must be repaired by a registered plumber d. All power switches must be in safe working order and if not then they must be repaired, or replaced if necessary, by a registered electrician e. The ceiling of the downstairs bedroom must be repaired, plastered, and painted to a satisfactory standard. f. The premises must be assessed as compliant for Healthy Homes Standards, including smoke alarm compliance.
- If the landlord fails to comply with Order 2 above, then the tenant may undertake the work and charge the landlord the costs of this work up to the amount of $5,000.00. These costs may be set off against rent payable.
- The landlord must lodge the bond of $5160.00 with the bond centre by 5pm Friday 6 October 2023 and provide evidence to the tenant that this has been done.
- Jcknz Investments Limited Charles Karuna must pay [The tenant/s] $3,130.19 immediately.
Reasons
- Both parties attended the hearing.
- The tenant claims that the landlord has not lodged the bond as required with the bond centre.
- The tenancy began on 20 May 2023. The tenant paid a significant amount of money to the landlord which was bond money. During the hearing the landlord acknowledged that he was yet to lodge the bond. His explanation was that he had overlooked it.
- The tenant also claims that the landlord did not provide the premises in a reasonable state of cleanliness and repair. The tenant wants the problems fixed.
- The tenant has provided evidence in support of her claims. There is clear and convincing photographic evidence of significant rubbish left at the property at the start of the tenancy. This forced the tenant to pay for Flexi Bins to remove the rubbish. She also paid for the Flexi Bin collection.
- The property was also in a state of disrepair. A pipe burst in the ceiling above the downstairs bedroom as a result of rats chewing on the pipe. This was confirmed by a plumber. The tenant says that there are also power switches in the upstairs bathroom which have tape over them.
- There was a problem with rodents in the premises at the start of the tenancy. This forced the tenant to arrange the services of a pest controller at her own expense. The pest controller’s invoice dated 12 June 2023 confirms a high level of rat activity in the roof cavities with significant build-up of rodent droppings. He further confirmed that the evidence suggests there has been a presence of rats for quite some time.
- The tenant was advised by the landlord that she could not use the bath as there was a problem with it.
- The gate to the driveway is also unable to be used as the owners at the back of the property cannot open or close the gate.
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
- The landlord failed to complete and sign the entire Healthy Homes section of the Tenancy Agreement. The landlord says that he overlooked this.
- The tenant also claims that the premises do not comply with smoke alarm requirements.
Has the landlord failed to comply with their obligations?
- The landlord has clearly failed in his obligations. The tenant is paying rent for the benefit of residing at the property and it is my view she should have full use of all amenities which she is paying for. This includes the bath and the driveway gate.
- [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health and safety
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- Based on the evidence provided the landlord has failed to provide the premises in a reasonable state of cleanliness and repair. I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord has by his own admission failed to lodge the bond with the bond centre. This is a significant amount of money which the landlord has kept in his own bank account. In my view this is a serious breach by the landlord. I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986. Rent Refund
- The tenant claims that she should be refunded her rent for the first two weeks.
- Given the findings I have made after hearing and seeing the evidence I am awarding the tenant a partial rent refund for two weeks. The rent refund starts from the start of the tenancy on 20 May 2023.
- I am reducing the rent by $430.00 per week for the first two weeks. This is one third of the weekly rent payable. The tenant has had some benefit from residing at the property and so should pay some rent. However, the landlord has deliberately turned a blind eye on their obligations at the beginning of the tenancy by failing to provide the property in a reasonable state of cleanliness and repair.
- The tenant claims reimbursement of various expenses associated with the condition of this property. Having sighted the evidence filed in support of these expenses I am satisfied that the landlord is responsible for payment of these amounts.
- Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.