What was Tenancy Tribunal case 4605042 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 4605042?

Compensation: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimbursement Of The Break Lease Fee: $765.00 awarded to tenant

What type of tenancy dispute was case 4605042?

The dispute type was not classified.

Where can I read the official tribunal order for case 4605042?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9525043-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4605042 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 4605042?

Compensation: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimbursement Of The Break Lease Fee: $765.00 awarded to tenant

What type of tenancy dispute was case 4605042?

The dispute type was not classified.

Where can I read the official tribunal order for case 4605042?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9525043-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4605042 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4605042 — net $2,785.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,000.00	Compensation
Reimbursement of the break lease fee	$765.00	Reimbursement of the break lease fee
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,785.44
Total payable by Landlord to Tenant	$2,785.44

Claims and awards in Tenancy Tribunal application 4605042 — net $2,785.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,000.00	Compensation
Reimbursement of the break lease fee	$765.00	Reimbursement of the break lease fee
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,785.44
Total payable by Landlord to Tenant	$2,785.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $20.44 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

[Tenant 1], [Tenant 2] and [Tenant 3] have brought a number of claims against their landlord for issues they faced during their tenancy. They moved into the property in March 2022 and renewed their lease 1 in November for a further year. In April 2023 they sought to end their fixed term lease early and found replacement tenants, officially ending the tenancy on 4 May 2023.
[The property manager/s] represented [The Property Management Company 1] who managed the tenancy from October 2022 until the end. [The landlord/s], the owner of the property and director of [The Property Management Company 2] who initially commenced the tenancy, attended part of the hearing and was provided with time after the hearing to submit further evidence. Whilst not named on the tenants’ application he agreed to be joined as a party given their period of management and issues relating to that time.
The tenants consider that the property was unlawfully rented to them as a three bedroomed home. As a result, they suffered ventilation and heating issues which in turn damaged their belongings and their mental health. They also faced maintenance issues with the property and interference by a neighbour that impacted their ability to enjoy their tenancy. For these reasons they decided to leave early and now seek the following: i. $41,255 by way of a full rent refund because they say they lived in an unfit/unlawful property. ii. $870 refund of the break lease fee they paid. iii. $2,235 in compensation being the amount they paid for their original bond. iv. $5,640 compensation for having to deal with all of the issues they faced with the tenancy.
Accordingly, the questions for the Tribunal are therefore: a. Was the property lawfully able to be rented in the way it was? b. Did the landlord comply with their obligations pursuant to the Residential Tenancies Act 1986 (RTA)? c. If not, what compensation or refunds should be made?
I discuss all of the claims to substantiate these amounts below separately in accordance with the civil standard of proof which is the balance of probabilities. In other words, the tenants as applicants, must establish with evidence that their claim is “more likely than not”. I note that whilst I may not have referred to all the evidence presented, the parties can be assured that it has all been considered.

Was the premise lawfully able to be rented out as it was?

1 That was due to end in January 2023

The tenants submit that the property should not have been rented out to them as a three-bedroomed home. Their reasoning is as follows: i. One bedroom is incompliant with the Housing improvement Regulations 1947 (the Regulations) as it was only 3.52 sqm and Regulation 8(2) requires all bedrooms to be no less than 6 sqm. ii. The same bedroom also breaches Regulation 11 which requires all habitable rooms have windows or other adequate ventilation, and this bedroom had none. This is also a breach of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) ventilation standard. iii. Another bedroom had a skylight that did not open sufficiently to allow adequate ventilation into it. They say it did not even open enough for them to see if it was open. iv. Both these bedrooms had no means of escape in a fire outside their rooms due to not having openable/accessible windows. v. The living room did not have a heat pump in it which is in breach of the HHS heating standard. vi. The living room is in breach of Regulation 6 that requires all living rooms to be fitted with an approved form of heating as it had no heater and no electrical socket in which to plug in a heater. vii. The property was inherently damp which is in breach of Regulation 15. viii. No building consent had been approved by the [Local Government] to develop this property into a three bedroomed home from a one bedroom.
[The landlord/s] has helpfully provided the following current plan of the premise:
Within this decision I will refer to the bedrooms as 1 (the big room on the left), 2 (the second bedroom noted on the plan) and 3 (the room noted on the plan as an office).
[The property manager/s] submits that the premise is lawful. He provided a Quotable Value (QV) 2 e-Report which states that the house is a two bedroomed home and income multi-unit property that was built prior to 1914 3 . The same information is provided by Property Guru which is operated by Core Logic 4 . I am satisfied that these documents establish that this property is consented to be used as two household units; one up and one down, both of which were intended as one-bedroom units. This premise is the upstairs unit. Council Consent and the Regulations
From an earlier layout it is clear that the lounge of the original layout has been altered to two bedrooms prior to [The landlord/s] purchasing the property:
The tenants submit that this was not undertaken with Council consent and accordingly was not lawful.
[The property manager/s] has provided the LIM report 5 which states that alterations were undertaken to the property in 1950 and 1966. He indicates that these may have related to the conversion of the living room of the premise being altered into two bedrooms.
There is no detail as to what these alterations noted in the LIM were and given the work appears to have been undertaken relatively recently, I do not find it likely they relate to the bedrooms.
The Regulations, although dated, do set out the bare minimum expectations for housing. The Building Act 2004 (the Building Act), and the Building Regulations 1992 which contain the Building Code (the Code) set out further detail and are discussed below. Given the basic requirements of the Regulations, a home is generally only exempt from the Regulations if meets Council bylaws.
The conversion of these bedrooms most likely did not need Council consent as they would not have required alteration to any window or structural wall. 2 Valuation and property service company 3 1890-1899 4 A company that collects and analyses property data 5 Residential Land Information Memorandum Therefore, whomever erected them could likely have done so without going through Council.
However, even if building work does not need Council consent, it is still required to comply with the Code 6 and the Regulations. Bedroom 3 7 is less than 6sqm in size and does not have an openable window.
Accordingly, I find it established that bedroom 3 does not meet Regulation 8 or Regulation 11.
[The property manager/s] argues that as it was the tenants’ choice to use bedroom 3 as a bedroom, it is not the landlord’s responsibility. He says the advertisement referenced the room as a study.
The tenants say that in their discussions with the [The Property Management Company 2] representative they were clear they needed three bedrooms and would be using the property in that way and that was how it was marketed to them.
I am satisfied that [The Property Management Company 2] advertised the property as able to be used as three bedrooms as the wording states: “2 double bedrooms plus a study (that could double up as a bedroom..). Further, the tenancy agreement clearly states three different tenants and I accept their evidence that they made it clear that they would be using three bedrooms. Accordingly, I find it established that [The Property Management Company 2] was aware that the third room would be utilised as a bedroom and rented it to these tenants on that basis.
Section 36 of the RTA states that: The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Accordingly, it was the landlord’s responsibility to ensure that there was no legal impediment to the occupation of the premise as a three bedroomed dwelling as that is what they contracted for. They have failed in this responsibility here. Essentially, they were not entitled to rent this out as a three bedroomed premise as it is really only suitable as a two bedroomed home.

HHS

6 Section 17; Building Act 2004 7

11 x 2.28m
This tenancy commenced on 19 March 2022 therefore was required to be compliant with the HHS within 120 days of that date. The tenants submit that it is not complaint with the heating and ventilation standards.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The property does have a heat pump that would qualify as an approved heating source pursuant to the HHS, however it is argued that the location is incompliant. It is currently in the hallway next to the entrance to the kitchen area which goes into the small living room through an arched doorway.
The HHS 8 states that the main living room of the premises must be heated by a qualifying heater. A living room is defined 9 as “a room that consists of, or includes, a habitable space that is for use, or could reasonably be expected to be used, for general everyday living, whether as a lounge room, dining room, sitting room, family room, or other similar use”. The main living room is either the only living room or the larger of them if there is more than one.
Here the room designated as the lounge (off the deck) was not used for general everyday living as it was too small for such use. The tenants used the kitchen area for that purpose. I am satisfied that the location of the heat pump is compliant with the HHS, particularly given the small size of the home. It is positioned so that it can heat the kitchen area and given its size I am satisfied that with the bedroom doors closed, the heat would reach the ‘lounge’.
Accordingly, I find that the HHS heating standard is met, as is Regulation 6.
The tenants also raise concerns regarding the ventilation standard given they experienced so much mould during their tenure. In this respect they note that there is no opening window in the third bedroom, and the second bedroom has a skylight which only opens slightly.
[The property manager/s]’s submission is that the skylight gives sufficient ventilation, and the third bedroom did not need to be used as such and therefore should be exempt. 8 Regulation 8 9 Regulation 3
The standard requires 10 all bedrooms to have a window or door that’s total openable area is at least 5% of the floor area of the room. The third bedroom clearly does not meet this requirement.
As applicant, it is the tenants’ responsibility to establish their case in evidence. They have not provided sufficient evidence to prove that the skylight did not meet this requirement, nor that it did not open sufficiently.
Accordingly, I find it established in evidence that the property does not meet the ventilation standard as the third bedroom does not have a window or any other means of ventilation. Lounge
The tenants also complain that the lounge did not have any electrical sockets which made heating it difficult, and its size made it problematic to use.
Whilst the room does not appear fit for purpose, and should not have been marketed as such, the tenants have not established that it breaches any laws or by-laws.
Accordingly, this claim is dismissed. Unlawfulness
The tenants have sought their full rent to be returned on the basis that the property was unfit and unlawful. Section 78A of the RTA discusses unlawful premises, and states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 45(1)(c) states that: (1) The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. In particular, this requires consideration of whether the landlord has complied with the provisions of the Building Act and Code, and the Regulations. 10 Regulation 21
As discussed above, the alterations creating bedrooms 2 and 3 did most likely not need Council consent, however they were still required to comply with the Code and Regulations. Bedroom 3 does not comply with the Regulations.
The Code also requires sufficient ventilation. As follows: G4.2 Spaces within buildings shall be provided with adequate ventilation consistent with their maximum occupancy and their intended use. G7.2 Habitable spaces shall provide adequate openings for natural light and for a visual awareness of the outside environment.
I do not find it established that the property is compliant with the Code with respect to bedroom 3 due to its lack of windows.
There is no evidence that there was insufficient means for escape in a fire from bedrooms 2 and 3 as their doorways were relatively close to the external doorway.
Accordingly, I find the property is not compliant, in its current three bedroomed state, with the Code or Regulations. This does not however make it an ‘unlawful premise’ as envisaged by s78 RTA.
As noted in previous Tribunal decisions 11 most situations of an unlawful premise as determined by the Tribunal fall roughly into one or more of the following categories: a. Properties where no building consent or resource consent has been obtained at all. b. Premises where an abatement notice, or dangerous and insanitary building notice has been issued by Council. c. Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted for residential use and then rented out as a separate household unit, without Council consent as to the change of use. The premises themselves may have had the necessary building consents but there is no Council approval for the use of the premises as a separate household unit.
These decisions have made findings because of these irregularities, that the household unit as a whole should not have been rented out as a place to live. In most cases the premises are not aligning with their intended or consented use.
These categories align with the clear intention of Parliament when enacting s78A to curb the practice of unscrupulous landlords converting buildings or parts of buildings into residential areas when they were not meant to be used for such 11 P94, Tenant v Presland and Co Trustee Company [2021] NZTT 4290197 purposes or had such deficiencies that they should not be used for such purposes.
That is not the case here. This property was intended and consented to be used for residential purposes although it does have regulatory failures. However, the regulatory failures of the property do not render the entire premise unlawful to occupy. The ‘unlawfulness’ only relates to those areas and not the premise as a whole. It has Council consent as a residential premise, and it can be lawfully used for occupation as a one or two bedroomed home.
Accordingly, I do not find that this premise is an unlawful premise as defined in s78A of the RTA and this claim is dismissed.

Did the landlord comply with their obligations pursuant to the RTA?

The tenants submit that the landlord did not comply with their maintenance obligations pursuant to s45(1)(b) of the RTA, in particular with regard to the heat pump, damp, shower and deck. I discuss each separately.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so. Heat pump
On 15 July the tenants notified [The landlord/s] that the heat pump was not functioning. She arranged a check and service of it which was conducted two days later, and the tradesman confirmed it was functioning.
The tenants say it did not work after that time, only turning on for short periods before it shut itself off. They do agree they did not notify the landlord again except they thought orally at the inspection. There are no notes on the inspection report about the issue.
It is a tenant responsibility to notify a landlord of any maintenance issues 12 . They did this initially and the landlord responded appropriately. It was then incumbent on the tenants to notify of further issues after the service. I do not find it 12 S40(1)(d) RTA established in evidence that they have done so. I appreciate that these were young, first-time tenants and as such they did not want to regularly complain, however essentially the matter is one of necessary communication.
Accordingly, I cannot find the landlords responsible for an issue they were not aware of. This claim is dismissed. Damp
Due to the layout of the house the tenants submit that it was inherently damp. They say they noticed mould on their belongings which grew at a rapid rate, mainly in bedroom 1. They say it grew down the backs of their furniture and on their clothing and shoes in their cupboards. It also grew in the shower which is discussed below. They say they got physically and mentally sick as a result of these conditions. They raised the issue with the landlord and purchased a dehumidifier. They say the dehumidifier had to be emptied several times a day and did mitigate the issue, but did not rectify it.
Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault. A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
[The landlord/s] says that the property faces west therefore gets a lot of sun. He says they never saw any evidence of mould, both during and since the tenancy. He questions why the tenants renewed their tenancy if the conditions were as bad as they say.
Heating, or lack thereof is discussed elsewhere, and I have not found the landlord at fault in that respect. Ventilation is an issue however I note that the majority of mould was found in the bedroom that had several opening windows. The tenants detailed how every couple of days they opened windows in an effort to air the property out. [Tenant 2] in the second bedroom said she did not like to open the skylight in case rain came in and [Tenant 3] in bedroom 1 said as her windows were to the street she only opened them when she was at home.
Other than the lack of a window in bedroom 3, there is no evidence of any other inherent damp issue with the premise. A building report was obtained when the house was purchased before this tenancy which did not raise any issues of damp. The landlord says the current tenants have not raised any issues.
There is however no evidence that the landlord specifically respond to the several times the tenants raised the mould issue. They did have tradies out to look at the heat pump and shower that were separately raised, but it appears no specific discussion was had regarding the mould.
There is a disagreement over whether one of the email notifications the tenants sent was received given the address it was sent to. There was however at least one other request to look at the issue by the tenants which was not heeded.
The obligation in s45 on a landlord is to initially at least investigate an issue. There is no evidence that they did here. Accordingly, I find this a breach of s45 of the RTA. Shower
On 15 July the tenants also notified [The landlord/s] of the shower flooding and it being in poor condition with the wood moulding and breaking and the walls peeling. They say it was disgusting and moulded extremely quickly. They say they felt dirty showering in it. The plumber inspected it and cleared the drains on the 17 th of July ostensibly telling the tenants that it needed replacing. They also say they overheard him on the phone to the landlord saying as much. The drain issue was fixed with this visit, but they say the state of the shower remained poor throughout the tenancy.
They heard nothing further and emailed again in November at which point the property manager said they could replace the lining but would need them to vacate for at least two to three weeks for the work to be done. She finished the email “let us know”. [Tenant 1] says they interpreted this email that the landlord would be back in touch after the new year about a date to replace the shower. No work was undertaken on the shower during the tenancy.
[The landlord/s]’s submission is that there is nothing wrong with the shower, it is old but still fully functional. [The property manager/s] says they would have replaced the linings to placate the tenants but did not consider it required maintenance. Further, his understanding of the email was that they were waiting for the tenants to tell them when they could vacate for three weeks for the work to be done.
What is a reasonable state of repair requires having regard to the age and character of a property. The tenants have not provided any photos of the shower however the landlord has provided the inspection photos. These show an older style shower. There is some rotting on the step up and wood surrounds however it is still functional.
I do not find it established in evidence that the shower is in an unreasonable state of repair. It is most certainly old but that does not make it unreasonable. The landlord responded adequately when advised of the drains and with regard to the replacement of the lining. There should have been clearer communication from the landlord as to arranging for this work to be done with the tenants, but this failure is not akin to a breach of s45. Accordingly, this claim is dismissed. Deck
On 14 October the tenants notified the landlord that the balcony support beams had broken. In response a builder propped up the deck with two new posts. From the landlord’s perspective this dealt with the issue, and they advised the tenants that the builder had “secured” the balcony. They also said that it would be replaced at some stage but were unsure when.
The tenants submit that despite the building work they still had no confidence in the integrity of the deck and as a result used it rarely which considerably compromised their enjoyment of the property given its small size. They say it would bounce and shake and there was an obvious dip in it. One of the tenant’s brothers who is a builder ostensibly told them it was unsafe.
Looking at the original email of notification, the tenants clearly refer to the balcony support and specifically ask to have the beam fixed. There is no evidence that they made the landlord aware that they were concerned with the overall integrity of it, or that they felt they could not use it.
Having assessed the evidence, I am satisfied that the landlord responded adequately to the tenants’ notification, and it is not reasonable to hold them to account for the overall state of the deck when that concern had not been advised. I also do not find it established that the deck was compromised, particularly given a builder had strengthened it. Accordingly, this claim is dismissed. Break Lease Fee
The tenants submit that the landlord has breached s44 of the RTA with respect to the break lease fee they were charged. Firstly, they say it was calculated incorrectly, and secondly that GST was charged on it which they say is unlawful as it related to the rent.
They were initially charged $984.75 which was $870 plus GST. Clause 33 of the tenancy agreement states that if a tenant breaks the fixed term lease early the tenant must pay “1 weeks rent for a whole flat moving out plus $35.00 per credit check per replacement tenant”. This would total $870 13 in this case. When they queried this with the landlord, they reduced the amount by 15%.
S44A states that a landlord is entitled to recover from an outgoing tenant any expenses reasonably incurred by the landlord in respect of the agreement. However, they must provide an itemised account to the tenant of those expenses incurred before they seek recovery of same. This section was designed to end the practice of landlords charging tenants set break lease fees and rather be reimbursed for the actual costs incurred.
Section 11 of the RTA is clear that any provision in a tenancy agreement that is contrary to the provisions of the RTA is to be of no effect. Effectively therefore, a tenancy agreement can no longer include a set break lease fee; the amount charged must be based on the actual costs incurred by the landlord in agreeing to the end of term early.
Clause 33 of the tenancy agreement is setting a fixed fee and is therefore inconsistent with the RTA. As such, I declare it of no effect.
The landlord did incur costs in ending the tenancy early however they have only established the credit check costs being $35 per tenant, therefore $105. They have not provided an itemised account of any other costs, nor established the reasonableness of them. Therefore, I am satisfied that as the break lease fee was charged in contravention of the RTA it is reasonable that it be reimbursed to the tenants minus the credit check costs.
As a related issue, the tenants argued that the landlord did not act reasonably or in a timely way in response to their intention to end the tenancy, but I do not find this claim established as there was a relatively short period between their notification to the landlord and the end of the tenancy. Breach of quiet enjoyment
The tenants had a myriad of concerns regarding the behaviour of the tenant in the unit below theirs. They detailed them to the landlord who, with their consent spoke to the other tenant. [The property manager/s] in doing so put each of the allegations to him for comment. The tenants feel that in doing so he breached their privacy as they had wanted [The property manager/s] to ask the tenant to 13 Weekly rent $765 and three tenants moving in keep away from them only. They say they felt a lack of empathy from the landlord for the situation.
Section 38(2) of the RTA states that a landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises. I am satisfied that [The property manager/s] did not permit the lower tenant to breach these tenants’ quiet enjoyment, which he clearly did, as he acted appropriately in speaking with the lower tenant about their concerns.
I also not do not find it established that [The property manager/s] breached the tenants’ quiet enjoyment in detailing the concerns with the lower tenant. They did not specifically give him the information in confidence, and they had consented to him speaking with the lower tenant. [The property manager/s] felt obliged to detail the concerns for the lower tenant given they were levelled against him, which is reasonable. He advised the tenants to come back to him and/or contact the Police should anything happen again which they did not. Further, the landlord accepted the break lease on the basis of the lower tenant’s behaviour.
Accordingly, I do not find a breach of s38 committed here by the landlord. The lower tenant’s behaviour was unacceptable however was not caused or permitted by the landlord.
The tenants have raised a further submission that the landlord ignored their emails and messages until one of their mothers got involved on their behalf. I do not find this established in evidence. Their communication with the landlord was relatively minimal and whilst [Redacted] did not respond immediately to their messages at the end of the tenancy, I do not find his delay unreasonable.

What monetary orders should be made?

I have found that the premise is incompliant with the Regulations and Building Code with respect to bedroom 3. This is a breach of s45(1)(c) of the RTA. I have also found that the landlord failed to investigate the tenants’ concerns over mould growth, which is a breach of s45(1)(b). For these breaches the tenants seek compensation and/or a rent rebate.
They say living in the property was hard, and took a toll on their physical and emotional health. They had to regularly clean, purchase a dehumidifier and dispose of some belongings due to mould contamination. They have not provided invoice evidence of specific loss.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
The Tribunal has the authority 14 to award damages for stress and inconvenience. It does so on the basis that the law of contract allows such damages where the purpose or one of the purposes of the contract is the peace and comfort of the party and, in the case of a tenant, that is regarded as one of the purposes of a tenancy agreement.
Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply and the tenant must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate
As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth, and a tenant must expect some disruption or inconvenience from to time to time. Inevitably there is likely to be disruption when a tenancy approaches its end, even if both parties act entirely lawfully. Commonly there is disagreement and negotiation and often this is because of disagreement over rights and obligations. Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest.
I do not consider a rent rebate appropriate. The tenants commenced this tenancy knowing [Tenant 3] would be using bedroom 3 as her bedroom as it was. They had full use of the property throughout the tenancy despite the issues discussed above. There is also no justification for the amount originally paid in bond to be paid to the tenants.
The tenants’ evidence was that the main reasons they wished to end the tenancy early was that it was too small for them, especially after they had got cats, and the issues with the lower neighbour. Neither of these issues resulted from a landlord failure or breach. I have also found that the tenants’ communication was less than detailed on many issues. As a matter of law, a tenant is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered.
In saying that, the landlord was under a statutory responsibility to provide a property that was lawfully compliant; it was not. They were also responsible to follow up on all tenant concerns and I find that on the whole they were reasonably responsive, barring the mould issue. 14 77(2)(n) RTA
Having thoroughly considered all of the evidence and relevant factors, I find that an award of $2,000 compensation is appropriate in the circumstances.

Should the filing fee be awarded?

Because [The applicant/s] have substantially succeeded with their claims, I must reimburse the filing fee.

Should suppression orders be made?

Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application.
As I have found that both parties have been successful to an extent in their positions, I allow both their applications for suppression.

Tenancy Tribunal case 4605042 — Tenancy dispute

At a glance

Tenancy Tribunal case 4605042 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the premise lawfully able to be rented out as it was?

HHS

Did the landlord comply with their obligations pursuant to the RTA?

What monetary orders should be made?

Should the filing fee be awarded?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the premise lawfully able to be rented out as it was?

HHS

Did the landlord comply with their obligations pursuant to the RTA?

What monetary orders should be made?

Should the filing fee be awarded?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions