Published tribunal order
Tenancy Tribunal case 4611317 — Tenancy dispute
Decided 11 Apr 2024 · Published 11 Apr 2024 · Application 4611317
- Exemplary damages
- Leaks
- Mould & damp
- State of repair
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 names and identifying details of both parties. 2.
- [The landlord/s] must pay [The tenant/s] $161.59 immediately, being for reimbursement of overpaid electricity.
Reasons
- Both parties attended the hearing on 18 th March 2024.
- The tenancy was from 18 th March 2014 and it ended on 8 th May 2023.
- The tenant claimed for compensation of $49,400.00 from the landlord.
- The tenant claimed that the landlord did not maintain the premises at all and specified a number of problems which the tenant said seriously disadvantaged their health and safety including not having a proper toilet for 5 years. This is considered in more detail below.
- The tenant also claimed that the termination notice that was served on them was retaliatory. However, section 54 Residential Tenancies Act 1986 (“RTA”) requires for any application for retaliatory notice to be made within 28 days of the termination notice being served. The termination notice was given on 29 th January 2023 and the tenant’s application was made on 14 th June 2023. As the application was filed outside the required period, this claim is dismissed.
- The tenant said that they had paid $161.59 for power that was shared with another tenant at a standalone studio that was not part of the tenant’s premises. As the tenant is only responsible for outgoings that are exclusively attributable to the tenant’s occupation of the premises or the tenant’s use of the facilities, the tenant should not have been made to pay $161.59 even if it was calculated on a “pro rata” basis with the other tenant. The landlord must reimburse the tenant for the overpaid electricity.
- Finally, the tenant sought for refund of the bond. As the landlord had not filed any counterclaim for the bond, the bond is refunded in full to the tenant under section 22B(2) RTA. Failing to maintain
- [The tenant/s] claimed that the landlord has breached their obligations under section 45 of the RTA. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and 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 RTA.
- Specifically the tenant claimed that: a. The toilet bowl had cracked; b. The kitchen sink tap broke with old age; c. Roof tiles blew off and half dozen broke; d. The deck timber was rotten; e. The hot water cylinder frequently stopped working; f. The oven stopped working; g. The toilet in the house would only flush in dry weather for four years and then ceased to function afterwards; h. The weathervane blew off and broke causing rain to enter down the chimney; i. The foyer and entry way had a leaky glass roof; j. The French doors sliders and connectors had worn out and some fell off; k. All three bedrooms were damp and mouldy due to not being sealed properly; l. The lounge was cold and had gaps in the ceiling; and m. The driveway was never maintained.
- Before I consider the merits of the claims, I highlight section 40 RTA where it states that it is the tenant’s responsibility to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.
- If the landlord fails to maintain the premises to a reasonable standard, the tenant must take all reasonable steps to limit the damage or loss arising out from the landlord’s failure under section 49 RTA.
- There was evidence that the tenant had been informed by the Tenancy Tribunal regarding breach notice procedures from as early on as July 2015. The Tribunal had posted the tenants a couple of sample notices for the tenant to use if need be back in 2015.
- Despite the tenant’s numerous claims regarding lack of maintenance, the tenant was unable to provide any written notices requesting for maintenance to be done for most of the problems raised in the application. The tenant said that they were raised verbally but the landlord disputed this saying that they had no recollection of the issues being raised. The tenant was unable to provide any evidence of the issues being raised with the landlord properly.
- There was evidence of text message conversations between the parties regarding the rotten deck timber. After receiving the text message, the landlord sent a builder around to have the rotten deck replaced at and another builder to double check it once done. It cannot be said that the landlord had failed to reasonably maintain the deck in the circumstances.
- Regarding the toilet issue, there was no written communication by the tenant regarding the toilet not flushing. There was only ever one text message regarding the septic water pouring out when the other tenant at the studio was doing a “load of washing”. The text message seemed to suggest the issue was only temporary and the tenant did not raise it again with the landlord. The landlord had paid for the septic tanker to empty the septic tank during the tenancy. There was simply no other evidence of any toilet issue being raised with the landlord.
- I do not find that tenant has adequately informed the landlord about the need for repairs and as a result I do not find that the landlord has failed in their duty to maintain the premises to a reasonable standard.
- Without evidence of proper written notices being given by the tenant to the landlord to prove the landlord’s intentional failure to maintain the premises, it would be very difficult for the Tribunal to award $49,400.00 as sought by the tenant.
- I find that the tenant has failed to prove the maintenance claims to the required standard.