Published tribunal order
Tenancy Tribunal case 4612590 — Smoke alarms at 222A Staniforth Road, Kaiwaka, RD 5, Kaiwaka 0975
Decided 19 Dec 2023 · Published 19 Dec 2023 · Application 4612590
- Smoke alarms
- Exemplary damages
- Healthy homes
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 names and identifying details. 2.
Reasons
Background
- The tenancy began on 16 January 2022 and ended on 21 June 2023.
- The tenant’s application seeks exemplary damages and compensation under various headings, as detailed in the previous order.
- The hearing took place at the [Event location suppressed] Court on 13 October 2023. Ms Jacob attended the hearing in person. attended by phone with the consent of the Tribunal. Failure to lodge bond
- Landlords must forward any bond payments to the Bond Centre within 23- working days of receipt 1 .
- A breach of this duty is an unlawful act 2 . Exemplary damages of up to $1,500.00 can apply.
- The Tenancy Tribunal may award exemplary damages if the Tribunal is satisfied that a landlord or tenant has committed an unlawful act intentionally. In considering an award of exemplary damages the Tribunal must have regard to: 3 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
- Ms Jacob acknowledged that she failed to lodge the bond. Ms Jacob is aware of the duty to lodge bonds. Ms Jacob submitted that her previous tenants have been friends, or friends of friends, and she took an informal approach to those tenancies, which she carried over into this one.
- Ms Jacob failed to lodge the bond, and her action was intentional. It is appropriate to award exemplary damages in this instance.
- The usual approach of the Tribunal to assessing exemplary damages is to begin at one-third of the maximum award, and then to consider aggravating and mitigating factors 4 .
- In this instance it is an aggravating factor that Ms Jacob’s action was not an oversight.
- I have also had regard to the effect of the unlawful act on the tenants. The tenants intended to do a bond transfer to their new tenancy. Ms Jacob initially indicated that she was seeking to retain part of the bond (I understand that this 1 Section 19(1)(b) Residential Tenancies Act 1986 (RTA) 2 Section 19(2) RTA 3 Section 109(3) RTA 4 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781 was to do with cleaning). The tenants were unable to transfer the bond and had to fund the shortfall themselves.
- I acknowledge that Ms Jacob has since refunded the bond to the tenants in full.
- I will award exemplary damages of $800.00. Failure to provide a healthy homes statement
- Since July 2019 landlords have had a duty to provide the tenant with a healthy homes statement, giving the tenant information about the healthy homes compliance of the property 5 .
- A failure to provide a healthy homes statement is an unlawful act 6 . Exemplary damages of up to $750.00 can apply.
- The standard Tenancy Services tenancy agreement includes a healthy homes statement section, prompting the landlord to complete the information that is required by the relevant regulations.
- Ms Jacob used a standard Tenancy Services tenancy agreement for this tenancy, but she only completed three pages of that document. Those three pages contained an insurance statement, but not a healthy homes statement (or an insulation statement).
- Ms Jacob submitted that she did not bother with a healthy homes statement because she did not consider that there would be any problems with the tenants or with the property.
- The property in this instance is a “cottage”, and Ms Jacob is perfectly entitled to take an informal approach to being a landlord. However, the compulsory parts of the Residential Tenancies Act apply to all landlords and to all tenancies.
- Again, I must make an award of exemplary damages.
- Similar considerations apply here as above. Ms Jacob’s failure to provide a healthy homes statement was intentional, and there are no obvious mitigating factors.
- It is also relevant that the property was in fact not compliant with the healthy homes standards. The purpose of the statement is to give information to the tenants to enable them to make an informed choice about whether to proceed with the tenancy.
- I will award exemplary damages of $450.00. 5 Section 13(1CA) RTA 6 Section 13A(1F)(a) RTA Fireplace
- The property has a wood burner, which the tenants used during the winter of 2022.
- In November 2022 Ms Jacob had the wood burner serviced by [Fireplace company].
- [Fireplace company] found an issue with a damaged baffle plate. The plate needed to be replaced.
- Ms Jacob decided not to have the work done at that time. Ms Jacob submitted that Christmas was approaching and, heading into summer, she did not consider that it was an urgent repair.
- Ms Jacob intended to have the work done upon her return from travel in March 2023.
- Unfortunately, Cyclone Gabrielle struck Northland in mid-February 2023.
- The property was without power for eight days. Ms Jacob, who was in the South Island at the time, sent the tenants a message instructing them not to use the wood burner. This was the first that the tenants were aware of any problem.
- [The tenant/s] submitted that it was uncomfortable staying in the house with no power and no means of heating. They stayed at a motel for one night.
- Landlords have a duty to provide and maintain the premises in a reasonable state of repair 7 .
- The healthy homes regulations require landlords to have a “qualifying” fixed means of heating in the main living area.
- I understand the reasoning behind Ms Jacob’s decision to delay the repair. However, she was essentially taking a risk that the tenants would not have need of the wood burner until March / April. The tenants were entitled to have access to a functional wood burner.
- A failure by a landlord to maintain the premises in a reasonable state of repair or to comply with the healthy homes standards is an unlawful act. Exemplary damages of up to $7,200.00 can apply.
- Ms Jacob intentionally delayed the repair, but she always intended to do the repair. This is not an instance of a landlord refusing to do maintenance. However, the failure to maintain did have an impact on the tenant’s use and enjoyment of the premises.
- Having regard to these factors I will award: a. Exemplary damages of $250.00 7 Section 45(1)(b) RTA b. Compensation for the night of motel accommodation during the Cyclone $168.00. Ventilation and stormwater drainage
- There are no extractor fans or other qualifying means of mechanical extraction in the kitchen and bathroom.
- Ms Jacob acknowledged that this is the case. Ms Jacob submitted that the windows in the kitchen and bathroom provide adequate ventilation.
- [The tenant/s] submitted that the ground around the cottage routinely flooded, even in moderate rain, in particular in a paved area, and on the concrete apron / parking area. The tenants noted that someone had previously dug a small trench in the parking area, indicating that drainage was a known problem.
- Ms Jacob acknowledged that the paved area tends to flood. She submitted that the parking area was previously problematic, but the trench has improved the drainage there.
- The healthy homes standards require: a. An extractor fan or other qualifying means of ventilation in the kitchen and bathroom, unless an exemption applies. b. A drainage system that effectively drains storm water, surface water, and ground water to an appropriate outfall.
- I am satisfied that: a. The premises are not compliant in terms of ventilation in the kitchen and bathroom. There is no proven exemption that applies. b. At least to some extent, the drainage system at the property does not always effectively drain stormwater. The evidence around the extent and frequency of the flooding is minimal. The tenants provided one photograph of flooding in the paved area. I do not have a photograph of flooding in the parking area. During the period of this tenancy most parts of Northland experienced significantly higher than average rainfall, and frequent torrential rain events. c. Ms Jacob does not dispute the absence of extraction fans or the ‘pooling’ problem in the paved area. Ms Jacob acknowledged that the healthy homes standards apply, but considered that the property was acceptably warm, dry, and comfortable. d. It is appropriate to award exemplary damages in respect of the failure to meet the healthy homes standard in respect of ventilation. In considering an appropriate award of exemplary damages I have had regard to: i. The intention of the landlord. ii. The effect on the tenants. There is no evidence that the tenants raised any concerns about dampness / mould during the tenancy. iii. Ensuring a proportionate total award of damages in respect of this tenancy, which recognises that the landlord did not meet her legal duty in multiple respects, but also is not excessively punitive. e. I will award exemplary damages of $250.00. f. In respect of stormwater damage, the evidence provided to me does not establish a systemic problem that is significant enough to warrant an award of damages. Smoke alarms
- Since July 2016, landlords have had a legal duty to have compliant smoke alarms fitted in tenanted premises. The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 detail the type and location of alarms that are required.
- [The tenant/s] submitted that: a. When they moved in there was no smoke alarm in the premises. b. They informed Ms Jacob, who brought a smoke alarm and fitted it near the ranchslider in the main living area (where the previous alarm was located). c. They tested the alarm and found that it did not work. d. They purchased their own alarm and fitted it near the entrances of the two bedrooms.
- Regulation 5(6) states: There must be at least one qualifying smoke alarm installed: (a) In the sleeping space; or (b) Otherwise at the premises within 3 metres of the entrance of the sleeping space
- Regulation 5(9) states: In this regulation sleeping space – (a) means a space that is for use, or that can otherwise reasonably be expected to be used, as a bedroom or other sleeping space
- Irrespective of whether the smoke alarm that Ms Jacob installed was functioning, it was placed in a location that does not comply with the legal requirements.
- It is an unlawful act for the landlord to fail to meet its obligations in respect of smoke alarms. Exemplary damages of up to $7,200.00.
- It is appropriate to award exemplary damages in this instance. The stringent requirements in respect of smoke alarms – both in terms of the obligations on landlords and the penalties on tenants if they interfere with a smoke alarm – reflects the intention of Parliament to ensure that tenanted premises have this simple and effect means of saving lives and property.
- I acknowledge that Ms Jacob was not aware that the smoke alarm that the provided to the tenant was not working. I also acknowledge that Ms Jacob believed that she had met her duty by providing the smoke alarm, and the tenants addressed the problem themselves by installing their own alarm.
- Having regard to these factors, I will award exemplary damages of $1,500.00. Name suppression, filing fee
- The tenants sought name suppression.
- Name suppression is granted on the basis that the tenants have been substantially successful in the proceedings 8 .
- The tenants are also entitled to recover the filing fee for this application 9 .