What was Tenancy Tribunal case 4609209 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 4609209?

Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4609209?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4609209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9297975-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4609209 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 4609209?

Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4609209?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4609209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9297975-Tribunal_Order_Redacted.pdf.

6B Halleys Lane, Te Aro, Wellington 6011 Tenancy Tribunal Case 4609209 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4609209 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach s45	$500.00	breach s45
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Claims and awards in Tenancy Tribunal application 4609209 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach s45	$500.00	breach s45
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Just Property Management Limited must pay [The tenant/s] $520.44 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

[The tenant/s] moved into this tenancy in November 2022 after having arrived in New Zealand in September. A month into her tenancy her eczema, which had been effectively dormant for a decade, flared. She attempted to treat it, however sought medical advice in February when her treatments were not working.
Despite repeated medical appointments and changes in medication, her eczema continued to get worse and spread over her whole body. In May/June her doctor advised her to move out of her flat saying it was likely the damp conditions and presence of mould as the reasoning behind the severe eczema flare.
[The tenant/s] attempted to find a replacement tenant for her room but when she was unsuccessful, she gave 28 days’ notice to end her tenancy. However, the other two tenants did not want to end the tenancy so discussions between the parties stalled, as this is a periodic tenancy and not all tenants were in agreement. [The tenant/s] did move out in June and filed the application with the Tribunal to end the tenancy.
At the hearing on 31 July, it was agreed that her tenancy would end, leaving the remaining two tenants in the tenancy with a reduced rent ($415 from $595) for a finite period. The landlords agreed to repair the window in what was [The tenant/s]’s room and look into the functioning of the bathroom extractor fan. Accordingly, on 31 July an order was made ending [The tenant/s]’s tenancy and directing the Bond Centre to return her bond by consent.
This decision covers [The tenant/s]’s claims for compensation and/or exemplary damages which relate to the state of the premise as she sees it. [The tenant/s] is of the view that her room is not lawful as it does not have an opening window, that the ventilation in the bathroom is insufficient given the extreme presence of mould and the premise itself is damp, mouldy and unhealthy. I consider each of these situations in line with the specific law relating to each below.

Is the premise unlawful?

The Tribunal may declare premises to be unlawful residential premises in accordance with section 77(2)(ac) of the Residential Tenancies Act 1986 (RTA). Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA; see section 78A(2) RTA.
[The tenant/s]’s submission is that her room is unlawful as it does not have an opening window and on that basis she seeks all her rent to be refunded. Where the Tribunal declares the residential premises to be unlawful, it may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
As the issue of lawfulness of the premise to operate as a three bedroomed apartment was raised and the implications if the claim is made out are considerable, I provided the landlord with time post hearing to undertake investigations into the situation.
The landlord has provided documentation that indicates that the property is consented as a three bedroomed apartment. There is nothing to infer that it is not suitable to be classed as such either as the window in the bedroom can open, it just currently does not.
The evidential standard is the balance of probabilities, that is what is more likely than not. Having considered the evidence provided, I do not find it established to the evidential standard, that this is an unlawful premise. This claim is therefore dismissed.

Was the premise adequately maintained?

[The tenant/s] raises issues of concern with how the bathroom and her bedroom were maintained. She says that extensive mould has developed in both rooms as a result of their inability to be adequately ventilated. In particular, in her room the window does not open, and in the bathroom the extractor fan is insufficient. The law
Section 45 of the RTA details the landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Furthermore, a landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. In particular, Regulation 11 of the Housing improvement Regulations 1947 notes that every habitable room shall have an opening window and Regulation 15 states that every house shall be free of dampness.
Breaching any of the obligations in s45 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 RTA.
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. 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.
Mould is also 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. Discussion
[The tenant/s] first raised the issues on 31 May when she told Mr Taylor (her property manager) her window was painted shut and the mould was affecting her health; this was the reasoning she gave for wishing to vacate. There was then some correspondence between the two relating to her advertising to fill her room as the other tenants did not want to end the tenancy. On 14 June she advised Mr Taylor that her doctor had recommended her to leave because of the state of the flat. The following day she told him that her health was declining, and she was in pain because of the conditions
The concerns were not actioned by the landlord until after the next inspection in July when they were raised again by the tenants. At that time the property manager commenced securing a trade to repair the window but at the hearing date this had not been able to be completed and the extractor fan in the bathroom had not been examined. Mr Moran did not know when the fan was last serviced.
Mr Moran apologises for not looking into the issues in May when they were raised and says this was a mistake. They are now investigating and actioning the concerns. Because of this they have let [The tenant/s] out of the tenancy and reduced the overall rent obligations for the other two tenants while the maintenance is occurring.
Mr Moran notes that there were inspections in December 2022 and March 2023 and a tenancy variation signed in April at which times the issues were not raised by the tenants, and states that they were not aware the window was unopenable at this time. They point to the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) report that was compiled in December 2019 at which point the window was openable and say they were unaware as to when that changed.
It is accepted that the issue of the window was raised on 31 May but was not investigated until after a further property inspection in July. As at the hearing date of 31 July, no investigations or maintenance had occurred although they were underway. An unopenable window is a serious matter and accordingly I find this a breach of s45 of the RTA given the delay in having it investigated. I also note that there had been no intention to investigate the suitability of the extractor fan until the hearing when the evidence disclosed a significant amount of mould. I find the landlord was on notice regarding the suitability of the extractor fan when [The tenant/s] submitted photos of extensive mould in the bathroom with her application and the May inspection noted mould in the bathroom.
Both matters are being investigated now, but there has been an unreasonable delay. This is 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) RTA.
I do find the intentional element of s109 met as the landlord was aware of the issue from May and did not take meaningful steps to investigate/action it until July. Accordingly, I consider [The tenant/s]’s claims for compensation and/or exemplary damages for this breach. She claims for compensation related to medical bills and emotional injury. Compensation
With respect to compensation, liability exists for foreseeable losses flowing from the breach of a tenancy agreement. When awarding damages, the principal is that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement.
In saying that, 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. If a maintenance problem is discovered with a property, tenants are required to notify their landlords about it. If a landlord was not carrying out repairs, I would expect a tenant within a reasonable time to serve a 14 day notice to remedy the breach on the landlord. If that failed, they have two options available to them: (i) arrange for the repairs to be done and for the landlords to reimburse them the cost of the repairs (if the repairs were urgent), or (ii) apply to the Tenancy Tribunal for a work order and compensation if the landlords failed to comply with the 14 day breach of duty notice.
I accept that [The tenant/s] is new to New Zealand and unfamiliar with this process and therefore I find her submission that she did not know what else to do other than to leave, genuine. In saying that, the Tenancy Services website is easily accessible and provides very clear advice for such situations, as does the helpline. I must take this all into account when assessing the claim.
[The tenant/s]’s submissions are that she had not anticipated accessing medical care for her eczema flare, particularly not for the extent it has occurred. She is in New Zealand on a work permit therefore cannot access ACC and her medical costs are higher than a local resident’s. She did initially think the eczema flare was as a result of something she was doing, therefore changed medications and tried different treatments. She says it has improved since she has left the flat but is still bad and impacting negatively on her as it takes a long time to get better.
I do note that in evidence [The tenant/s] agreed that she had not attempted to open her window until approximately April. Therefore, her room was not being ventilated by her actions for a number of months. She did not advise her landlord of the issue until late May when she decided to move out and did not give them a chance to remedy the situation before moving out.
[The tenant/s] says the whole situation has been extremely distressing for her. Her eczema flare has negatively impacted her mental health, her ability to work and her life. She says she is coming close to being dependant upon steroids for her treatment which is not good, and she has scars from when it was very bad.
[The tenant/s] has had to work more than she anticipated to pay for her medical bills and for the move in residence and has lost job opportunities and workdays from being too sick to work.
A related stress for [The tenant/s] is that if she has extremely high medical bills whilst in New Zealand in her first five years, any application she makes for residency may be declined. Further, she has been so stressed by this situation and so financially incapacitated for having to find a new flat and pay her medical bills that she has had to delay applying for a second work permit.
[The tenant/s] claims $230 compensation being medical bills and an indeterminate amount for the stress she has suffered.
With respect to the medical bills, I find that the mould in the apartment more likely than not contributed to [The tenant/s]’s eczema flare. Any medical bills [The tenant/s] incurred after 31 May when the landlord was made aware of the situation, can therefore be linked to the landlord’s breach of section 45. However, the medical bills presented by [The tenant/s] end with a last attendance on 23 May. Accordingly, as the landlord was not aware of the issue prior, I do not find them liable to reimburse her this cost.
[The tenant/s] did note that she is now facing dental work which will cost approximately $6,000 because she has not seen a dentist earlier because she had to fund her medical bills for her eczema. I make no award with respect to this cost as I do not find it established that it was caused by the tenancy.
Turning to the general compensation, I note that are limitations on the Tribunal’s ability to order general damages for emotional injury such as stress, anxiety and humiliation. When considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest. 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. Virtually any breach brings with it some degree of disappointment and upset, and almost every action could give rise to a claim for intangible loss. It is very difficult to put a price on an intangible, when it is not open to mathematical calculation, and requires some degree of subjective assessment and impression.
Taking into account all of the above, but particularly [The tenant/s]’s failure to notify the landlord earlier of the issue or try to ventilate earlier, and the landlord’s pragmatic, albeit late response, I do not consider an award of general compensation justified in the circumstances. Exemplary damages
In considering the factors in s109 noted above in relation to [The tenant/s]’s claim for exemplary damages, I note the following: i. [The tenant/s]’s health concerns have undoubtedly been extremely stressful and upsetting for her and have affected her life detrimentally. She is in New Zealand alone and explains she has lost a lot of her time in trying to deal with this situation. Her move to New Zealand has not been as she had hoped/expected. ii. [The tenant/s]’s doctor’s evidence does link her eczema flare to the mould and damp conditions in the premise although I note that the doctor was only advised of the conditions by [The tenant/s]. iii. [The tenant/s] says she felt ignored when she tried to get help from her landlord and as a result, she feels she has been taken advantage of. The communications between [The tenant/s] and Mr Taylor are numerous but brief. The evidence does not establish that Mr Taylor was attempting to help [The tenant/s] or to deal with the situation, and I accept [The tenant/s]’s submission that she felt ignored. iv. The extent of the mould in the bathroom as evidenced by the photos is concerning and the reasoning for it should be investigated. v. Neither of the other two tenants have raised the concern of the mould in the bathroom. vi. The time frame of the delay is less than two months and whilst it is not reasonable, it is also not an extraordinary time period. vii. The landlord has allowed [The tenant/s] to end her tenancy only and the other tenants to remain with reduced rental obligations while the issues are investigated. viii. It is clearly in the public interest that landlords take their obligations pursuant to the RTA seriously and follow up all notifications of maintenance, particularly ones as serious as a window that cannot be opened.
Having considered all of the above factors, I find that that an award of $500 exemplary damages in the circumstances is justified.

Does the premise comply with HHS?

[The tenant/s] claims that the landlord has breached their obligations under section 45(1)(bb) of the RTA which requires compliance with the HHS, in particular with respect to the moisture ingress and ventilation standards. She says it cannot be compliant given how mouldy and damp the apartment is.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
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.
A HHS report was provided dated 2 December 2019. It assesses the bathroom as compliant with respect to the ventilation standard but says that two bedrooms (interestingly not this bedroom) and the lounge do not have openable windows that are equal or greater to 5% of the floor area. It relies on the exemption that the apartment was built in accordance with Council code at the time. It also assesses the property as compliant with the moisture ingress standard.
The HHS report is thorough, and I assess, reliable. There have been no material changes to the property since it was compiled and after the hearing the landlord has confirmed that the bathroom extractor fan has been assessed by a professional as functioning adequately. On the basis of this report, I am satisfied that the apartment is HHS compliant. Filing fee
Because [The applicant/s] has succeeded to an extent with the claim, I have reimbursed the filing fee. Suppression
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 and allows discretion if in the public interest. [The tenant/s] has been substantially successful therefore I approve her application for suppression.

Tenancy Tribunal case 4609209 — Exemplary damages at 6B Halleys Lane, Te Aro, Wellington 6011

At a glance

Tenancy Tribunal case 4609209 — Exemplary damages at 6B Halleys Lane, Te Aro, Wellington 6011

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the premise unlawful?

Was the premise adequately maintained?

Does the premise comply with HHS?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the premise unlawful?

Was the premise adequately maintained?

Does the premise comply with HHS?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions