Published tribunal order
Tenancy Tribunal case 4617951 — Healthy homes at 23 Sudbury Terrace, Parnell, Auckland 1010
Decided 23 May 2024 · Published 23 May 2024 · Application 4617951
- 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 tenants names and identifying details.
- The claim against Supercity rentals management ltd trading as Ray White Supercity Rentals is dismissed with the consent of the parties and has not been heard, due to the lack of service on that party.
- Viaduct City Rentals Limited and Jignesh Patel must pay [The tenant/s] $1449.40 immediately, as set out in the table below Agreed compensation for power and lack of laundry$129 Compensation for windows that would not close$500 Compensation for non compliance with heating standard$500 Failure to provide the Healthy homes information $300 Filing fee$20.44
Reasons
- This matter was adjourned from the prior hearing so that Supercity Rentals Management Ltd, trading as Ray White, (Ray White) could be joined as a party. At the outset of the second hearing, it was learned that Ray White had not been served. The hearing proceeded in the absence of Ray White but I made it clear to the parties that I could not make any orders against Ray White because it had not been served. I deal with the Ray White claim below.
- This tenancy commenced on 21 February 2022 and ended on 1 May 2023. When the tenancy started, Ray White was the landlord. On 1 May 2022, the rights and obligations under the tenancy agreement were sold by Ray White as part of a portfolio of properties. The landlord has assumed all the obligations of Ray White under the tenancy agreement but only from 1 May 2022 onwards. The tenants’ claims
- The tenants are claiming compensation against the landlord for the following: The windows would not close a) The tenants claim that four windows would not close properly. This was not immediately noticeable but as it became colder, it became a problem. One of the tenants has eventually become ill and had to pull out of his University studies. He was claiming his University fees for that semester as a result, but at the second hearing he withdrew that part of the claim. He is still claiming compensation. Photographs of the gaps in the windows were produced at the hearing. b) The tenants claim they first verbally notified “Stacey” of the landlord about this issue in May 2022, then in writing on 23 June 2022 and again on 21 July 2022 when they issued their first 14 day notice. The windows were eventually fixed on 11 August 2024. c) The landlord says that it did its best to deal with the issue once it was notified. It maintains that the windows were fixed in a reasonable period of time. The landlord provided a false Healthy Homes Report at the outset of the tenancy d) The tenants claim that the Healthy Homes report they were given at the outset of the tenancy said the property had a heap pump, but that it did not. They were provided this report by Ray White, who was then the landlord. This part of the claim was directed at Ray White. Given the absence of Ray white at the hearing, they withdrew this part of their claim, and so I have not made any determination on that part of the claim. e) The tenants were not fully aware of what a heap pump looked like at the outset of the tenancy, as the property had several vents. It was not until they called the owner direct on around 15 May 2022 to ask how to turn the heating on that they learned the property in fact had no heat pump. f) Clearly the property had no heat pump at the outset of the tenancy. What was in the agreement was not correct. This part of the claim however is directed against Ray White. Ray White was not present because it was not served and so this aspect of the claim is dismissed, with the consent of the tenants, and on the basis that they may wish to recommence a claim directed against Ray White. Failure of the landlord to comply with the Healthy Homes heating standards g) After learning in May 2022 from the owner that the property did not have a heat pump the tenants asked the landlord for a heat pump in writing on 23 June 2022 and it was installed on 30 July 2022. h) The tenants say they had to purchase heaters because the property was cold and they claim that the time it took to install the heat pump was too long. i) The Landlord submits that when it was asked for the heat pump it took all reasonable steps to get one installed. It says it did not opt for the more cheaper source of heating, from panels, but instead opted for a heat pump, which was more expensive. It submits that at that time there was a big demand for heat pump installation, which is understandable as it was the beginning of winter. j) The tenants submit that the foregoing facts mean that there was no source of heating or qualifying heated at all in the living area until the landlord installed the heat pump on 30 July 2022. Failure to provide Healthy Homes information k) The tenants claim the landlord failed upon request to provide a Healthy Homes Report. They requested one on 23 June 2022 in writing and never received one. l) The landlord was unable to point to any evidence showing that one was produced and supplied to the tenants. Compensation for laundry and renovations m) The tenants claim it was agreed with the landlord they would receive $79 compensation for their inability to use the laundry due to the January 2023 flooding and a further $50 by way of general compensation. They claim they have not received these sums. The landlord accepts that these sums can be reimbursed. The landlord must therefore pay the sum of $129 to the tenants. Analysis The windows would not close
- Under s 45 of the Residential Tenancies Act 1986 (RTA), a landlord must 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. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 1
- The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 2 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 3 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 4
- I find that the evidence establishes that four windows were unable to close properly in a bedroom of one of the tenants, and that as the winter months progressed, the relevant bedroom became colder.
- I accept the evidence of the tenants that they verbally notified Stacey of the landlord about this in May 2022. The tenants presented as clear witnesses and I had no reason at all to disbelieve their evidence. Having notified the landlord verbally, they then had to follow that up in writing on a couple of occasions. Meanwhile it was getting colder. The windows were not fixed until August 2022 by which time winter had well and truly set in.
- Even allowing for the normal sorts of delays in this situation, I find that this was too long. The landlord has breached its obligations of maintenance and repair. I award the tenants $500.00 compensation as a consequence. Failing to comply with the heating standard.
- The tenants claim 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 tenants consider that the landlord has failed to comply with the HHS heating standard.
- Compliance dates for the HHS vary depending on the tenancy: a. For private rentals 1 Section 45 of the RTA 2 DC Auckland CIV 2005 004 1762, at [28] 3 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15] i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply 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/
- This was a tenancy which started on 21 February 2022. The premises needed to comply with the heating standard on 21 May 2022.
- There was no heat pump or any source of heating at all in this property at the outset of the tenancy. A heat pump was installed on 30 July 2022. For 70 days, the landlord was therefore in breach of the heating standard.
- There is a significant public interest in ensuring that landlords comply with the healthy home standards. Homes need to be warm and dry and it should not be over to tenants to chase down landlords to ensure they are healthy homes compliant when they are clearly not. A landlord renting out property should be aware of and make themselves familiar with the relevant healthy homes legislation so that they ensure they are compliant.
- The landlord was not compliant for 70 days but there was no evidence that this was deliberate. I agree that it would have taken some time at that time of the year to organise installation of a heat pump but I am satisfied that an order for compensation needs to be made to reflect the reduced benefit and enjoyment by the tenants of their property over that 70 day period, particularly given that a large part of it was in the colder months.
- I award the tenants $500 compensation for the non-compliance with the heating standard. Failure to provide Healthy Homes Information
- Under section 45 of the RTA, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
- The evidence established that the tenants have requested this information in writing and it was never supplied to them. Once again, there is a significant public interest in ensuring that landlords are aware of and comply with the healthy homes obligations. I consider that an award of compensation needs to be made in favour of the tenants against the landlord to reflect that public interest. The landlord must pay the tenants $300.00 for failure to comply with the requirement to supply the healthy homes information.
- Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.
- I am satisfied that given the tenant’s success, there needs to be an order for suppression of their names.