Published tribunal order
Tenancy Tribunal case 4616669 — Exemplary damages at 27A St Leonards Road, Mount Eden, Auckland 1024
Decided 12 Sept 2023 · Published 12 Sept 2023 · Application 4616669
- Exemplary damages
- State of repair
- 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/s] names and identifying details.
- Megan Jaffe Real Estate Limited T/As Ray White Remuera Property Management As Agent For Sun Fang Ling Gao and Megan Jaffe Real Estate Limited T/As Ray White Remuera Property Management As Agent For Sun Fang Ryan Kimi-Cross must pay [The tenant/s] $3,668.53 immediately as per the table below.
Reasons
- Both parties attended the hearing. [The tenant/s] for the tenants. Mr Thomas Farmer and Ms Ling Gao as agents for the landlord.
- This tenancy started out as a fixed term tenancy where rent was paid from 24 June 2023. Though it was anticipated the tenancy would start earlier, the tenants wanted the landlord to ensure the premises was up to standard before they moved in. The tenants and the agents exchanged correspondence about repair and healthy homes issues.
- The tenants wanted the premises to meet the current standards before they moved in. The agents referred to the fact this was an older style property and rented out as viewed, with the comment “no improvements to be made”.
- The premises is a 1980s style wooden property that had a previous tenant for a significant period.
- By consent, this tenancy is ending on 28 August 2023. The tenancy will have lasted 9 weeks.
- The tenants’ main issue is about the lack of security (proper locks) and failure of the agent or landlord in addressing their concerns about healthy homes, ie, heating/ventilation and thus mould and mildew in the home.
- The tenants would like compensation for paying a week’s extra rent without being able to move into the home. They believe the work to rectify the concerns was not addressed properly.
- The tenants obtained a healthy homes report, changed a lock to the garage and third bedroom and ultimately have sought early release from the tenancy. They feel the agent mis-represented the condition of the property when they signed up. The tenants believe the home was not compliant with Healthy Homes standards, but a certificate was signed.
- Trust has been broken between the parties.
- The agents do not dispute the home was not compliant with the latest standards.
- The agents point out they had 120 days to comply with the new Healthy Homes standards. Most of the work to reach compliance was done last week.
- It is now be up to the agents to ensure the premises meets the latest standards for all new tenancies.
- The agents agree they would reimburse the tenants’ costs for: (a)changing the lock (for the garage which lead to the third bedroom)( $252.24); (b)healthy homes report obtained ($148.35); (c)early release fee ($747.50).
- The above costs are reimbursed accordingly. Tenant’s Claim for Lack of Security and Failure to Maintain
- [The tenant/s] claim that the landlord has breached their obligations under sections 45 and 46 of the Residential Tenancies Act 1986 (“RTA”).
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
- Under section 46, a landlord shall provide and maintain such locks and other similar devices as are necessary to ensure the premises are reasonably secure.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 for Failure to Maintain and $1,500.00 for Locks. See Schedule 1A RTA.
- The tenants say the landlord provided a home which had rubbish left behind in bins and within the home (such as old curtains). From photos provided, the garden was also overgrown and pot plants left on the property. The tenants had to use their time to clean and tidy the property and attend to maintenance issues.
- The tenant provided video and photos of the doors not being secure at the beginning of the tenancy. These videos are not disputed. The front door lock is exposed with silicon or glue and the handle wobbly.
- The tenants had to provide their own appropriate lock for the garage as the landlord provided a bolt system that would be unsafe to use in a fire situation.
- The patio doors now close but the tenants say are still a nuisance and not easy to use.
- These matters were brought up by the tenant on the 23 rd of June 2023 and by the issuing of a 14 day breach notice on 28 June 2023 to have it fixed.
- There was also an industrial light in a bedroom that was flickering. The agent accepts this was overlooked.
- The agent says she had trouble getting access to the property for these matters to be fixed. There is no evidence showing the agents followed the matters raised in a timely manner.
- The agents say they were more focussed on communication regarding ending this tenancy between the tenants and themselves. The agents refer to extensive emails between the tenants and themselves about this. Around 1-3 July 2023, there was already discussion about ending this tenancy.
- 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 gave repeated reminders to the agents to maintain and repair. Some of the issues were not done in a timely manner, or done to a low standard.
- The duty is on the landlord to ensure the property is secure and of a suitable state of repair to live in. I award exemplary damages for the breach of security at $500.00 and breach of failure to maintain at $1,000.00. This is on the lower end of the scale due to the fact the tenancy is of a very short duration. However, it has meant the tenants have to wear costs of either paying double rent or further costs of moving in a short period of time. Healthy Homes Standards
- [The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating and ventilation standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 28 August 2022, with all private rentals complying by 1 July 2025.
- 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 heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
- 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 HHS does provide exemptions in specific circumstances.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
- In this case the tenant obtained a Healthy Homes Report in July 2023 which outlines the current standards that the landlord must meet. The heating and ventilation requirements had failed.
- The landlord however is in the process of meeting the standard and had 120 days since the start of this tenancy to meet that standard.
- From the tenant’s point of view, the house has no fixed heater in the living room. [Tenant 1] says she stays in her room mostly as it is warmer that way. Though there is a gas flued heater, it was not connected to any provider. There seemed to be confusion about who was responsible for this amenity. After hearing that the flued heater was serviced last week, and unlikely to have been used by the last tenant, I am not confident the heater was easily usable for this tenancy.
- Extractor fans until last week vented only into the ceiling. The kitchen extractor fan was a filter type that pushed air back into the room. It is not surprising there are photographs of mildew on the curtains and ceiling at the start of the tenancy. Though rectified earlier on with paint, it was masking the real problem.
- The agents should have checked whether the home was compliant with the latest standards. A certificate was signed stating the heating/ventilation and moisture standards were met without an updated check being done after a long term tenancy had ended requires a review of practice.
- The agents accept the latest Healthy Homes report provided by the tenants.
- On that basis and given the steps taken to rectify the healthy homes situation (which ultimately the landlord had 120 days to rectify), I decline to award exemplary damages but award the tenants compensation for the representation of the property being compliant and the inconvenience caused to the tenants to chase remedy in the face of initial opposition to this occurring.
- I award $1,000.00 compensation to the tenants. This is to recognise the fact the concerns they raised about heating, ventilation and mould/mildew was not regarded in a sufficient serious manner, leading to one tenant not being able to move in, paying double rent, another feeling like not having a choice but to move in given the fixed term nature of the agreement.
- Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee.
- The tenants are seeking suppression of identifying details in any publication of this order. If a party has wholly or substantially succeeded in the proceedings the Tribunal must make the order unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. Section 95A Residential Tenancies Act 1986.
- The tenants have been substantially successful in these proceedings. Having considered the factors in this case the Tribunal grants suppression as sought.