What was Tenancy Tribunal case 4621049 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 4621049?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4621049?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Cleanliness, Leaks.

Where can I read the official tribunal order for case 4621049?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10104882-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4621049 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 4621049?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4621049?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Cleanliness, Leaks.

Where can I read the official tribunal order for case 4621049?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10104882-Tribunal_Order_Redacted.pdf.

5A Ponui Place, Mairangi Bay, Auckland 0630 Tenancy Tribunal Case 4621049 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
George Kondic and Nena Kondic must pay [The tenant/s] $3,910.44 immediately as follows:

Reasons

Both parties attended the hearing. The landlords were represented by Mr Kondic. Background
The parties entered into a periodic tenancy agreement commencing 21 October 2022. The tenancy ended on 19 May 2023 after the tenants gave notice of termination.
The tenants’ bond has been refunded by the landlords. Bond
The tenants paid a bond of $980.00. It is not disputed that the bond was not lodged with the Bond Centre.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986. The landlords did not do so and have thereby 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.
Mr Kondic’s evidence is that the landlords are aware of the obligation to lodge the bond and have always previously done so. He says that on this occasion, the tenants had made it clear from very early after the tenancy began that they were not happy and intended to end the tenancy quickly. He says he expected that the tenants would be giving almost immediate notice of termination and so saw little point in lodging the bond.
I have no reason to disbelieve that explanation which is consistent with the evidence, and I take into account that the tenants’ bond was immediately refunded to them once the tenancy ended. No loss was caused to the tenants by the landlords’ failure to lodge the bond.
There is nevertheless a public interest in ensuring that landlords comply with what is a core obligation to make sure a tenant’s bond is lodged with the Bond Centre. It is just to recognise that breach with a modest award of exemplary damages. Termination
After the tenants had raised with the landlords their concerns about the condition of the premises and their wish to end the tenancy, there were exchanges between the parties about a suitable termination date. The landlords were intending to carry out renovations after the tenants vacated.
The tenants allege that the landlords required them to vacate without giving proper notice.
With respect, that is not how I read the evidence. The parties had a meeting on 2 November 2023 during which the landlords noted that it would work better for them if the tenancy ended other than over the Christmas break.
The tenants afterward raised a concern that the landlords were requiring them to move out in 4 weeks’ time, which was not long enough for the tenants to find somewhere else to live.
On 6 November 2022 the landlords wrote: “I do not understand your e-mail. Please read again the following from my previous emails:
“You know as well as we do that the notice to terminate tenancy is at least 28 days written notice and the tenant does not have to state a reason. That means you can give us your written notice anytime. It doesn't have to be today or tomorrow it can be in one week two weeks, anytime you decide to do so”... “It is very obvious that in this case using your rights as a tenant you can give us your written notice in November, December January or tomorrow”.
I agree that mid-late January would work better for any changes. Simply let us know when you are ready to make your move”. Once again, no one is forcing you to go or stay, the decision is 100% yours. You can rent the unit for another 4 weeks or 104 weeks or anything in between. There's only one thing that is necessary, and that is to send us a clear written notice with the date of notice and your last date of tenancy indicated whenever you decide to move out. I repeat it is entirely your decision that we have to accept even if it falls on a Christmas Day or the 1st of January. Please let me know if any of this is not clear.”
That correctly sets out the position under the RTA. I do not find it proved that the landlords sought to terminate the tenancy unlawfully.
Later, the landlords agreed that the tenants could end the tenancy on 2 weeks’ notice. The tenants gave final notice on 8 May 2023 and the tenancy ended on 19 May 2023. Did the landlords breach their obligations under s.45 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.
Breaching 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 Residential Tenancies Act 1986.
It had been intended that the parties do a joint entry inspection.
The tenants moved their belongings in and stayed at the premises the day before the tenancy was due to begin and the joint inspection did not happen.
The tenants’ entry notes record the following: Lounge • Blinds broken • Lights not working • Window cracked Bedroom 1 • Water damage on shelf • Mould on ceiling • Mould on window frames and wall • Carpet stain • Chips on wall • 2 x hooks Bedroom 2 • Light switch broken • Lights not working • Carpet stain • Blinds broken Bathroom • Very dirty • Drain block • Fan dirty • Drain in shower broken • Water damage on mirror shelves Kitchen • Oven/ stove top dirty • Water damage on shelf • Stove top rust
The tenants also say that there was no door on one of the bedrooms. The landlords say that is because previous tenants used it as a study.

Were the premises provided in a reasonable state of cleanliness?

The tenants’ evidence is that when they moved in, the premises were not reasonably clean, which required them to spend most of the first week of their occupation getting the premises into a reasonable state.
They say the landlords were aware of that and accepted that the premises were not provided reasonably clean. They say that is corroborated by Mr Kondic telling them that they did not need to bother cleaning the premises when they left.
Ms Kondic denies the claim and says that the reason he told the tenants they did not need to clean the premises when they left, is because refurbishment work was going to be carried out not because the premises were not reasonably clean when the tenants moved in.
The tenants have provided photographs taken from the start of the tenancy, as well as the above notes from their entry inspection. That evidence satisfies me that the premises were not provided in a reasonably clean condition and that there was significant existing wear to the premises when the tenancy began. Many surfaces, especially around window and door joinery were grimy with signs of mould, the stove and hob were dirty, carpets were stained, and I accept that the tenants were required to give the premises a thorough clean to make them suitable for the tenants’ occupation.
The tenants are entitled to compensation for having to do that work which was the landlord’s responsibility. I assess fair compensation at $350.00. Mould
On 28 October 2022 the tenants txt the landlords, “Hi George. I was wondering if we can have a catch up about the house? We have found a lot of mould in the big bedroom. Thank you.”
The parties met. The landlords’ evidence is that they found some mould on the window frame which they offered to clean with chemicals, but the tenants preferred to do it themselves using only vinegar.
The parties met again on 2 November 2022. The landlords’ evidence, which I accept, is that they offered to thoroughly clean the bedroom window and treat it with appropriate liquids against mould. The landlords offered to have painters sand and professionally paint the bedroom window frame. The landlords also indicated to the tenants that should they wish to vacate, they could do so with 28 days’ notice in writing. The exchanges about termination of the tenancy referred to above, then followed.
The tenants declined those offers to clean/ repair the bedroom window.
The landlords say that when they inspected, they only found mould on part of a window frame in the main bedroom.
I have no reason not to accept the tenants’ evidence that the photographs they have provided in evidence, were taken in the premises during the tenancy. Those photographs appear to show a very much more significant presence of mould in that bedroom. Mould is shown emerging through the ceiling paint and on the lower walls, as well as a thicker and more concentrated grown on the window joinery. The photos show presence of mould in other parts of the interior and exterior of the premises.
On balance, I am persuaded that the tenants’ decision to sleep elsewhere than in the main bedroom, due to the prevalence of the mould there, was justified.
The tenants chose to sleep in the lounge rather than in the second bedroom, which had no door, which they say unreasonably compromised their privacy. I suspect it may have been possible for them to find other means of protecting their privacy.
I do not find it proved that the tenants should be compensated for on the basis that effectively no usable bedroom space was provided to them but rent should abate for occupation of the main bedroom being unsatisfactory due to the presence of mould. I asses a fair abatement at 20% of the rent for the duration of the tenancy.
The tenants claim compensation for replacement of many items of property they say were ruined by mould.
The tenants have provided photographs which show those items of property with what appear to be traces of mould on them. The evidence does not show that appropriate cleaning could not deal with those traces. I do not find it proved that the tenants are entitled to compensation for those effects, in addition to the rent abatement awarded

Were the premises in a reasonable state of repair?

Shower

On 2 May 2023 the tenants txt the landlord. “Hi George. Can you please call. The hot water cylinder has leaked in the lounge and hallway. Can you please call ASAP. Thank you.”
On 3 May 2023 the landlord replied, “Hi [Tenant] I'm expecting a call from plumber this morning. I will keep you posted.” Later that day the landlord advised the tenants that he would visit with the plumber. The plumber discovered that the issue was a leaking waste in the shower and repaired it. The tenants confirmed on 4 May, “Hi George there wasn't any leaks tonight. Thank you for getting that sorted.”
The tenants say that the leak had soaked the carpet in the lounge where the tenants were sleeping with drain water, and the landlord ought to have taken steps to deal with that. The landlords’ evidence is that an offer was made to have the carpets commercially cleaned and for a dehumidifier to be provided, but that both offers were rejected by the tenants.
The tenants use of the premises will have been negatively impacted by the leak and the dampness to the living room carpet.
That is a problem not of their making and compensation should be paid for the inconvenience to them.
The evidence satisfies me that the landlord took appropriate and prompt steps to address the issue and its consequences, so any remedy should be limited to compensation for the immediate effects of the leak and of the carpet drying necessary afterwards, which I assess at $200.00.
The tenant’s entry inspection noted refer to other damage but there is no evidence of a need for repair having been brought to the landlords’ attention as required by s.40(1)(d).

Should exemplary Damages be awarded?

I have found that the landlords breached their obligation to provide the premises in a reasonable clean condition and maintain the premises in a reasonable state of repair.
As noted, breach of that obligation 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) Residential Tenancies Act 1986.
The evidence persuades me that there were defects with the premises and their condition when the tenancy began that the tenants are entitled to compensation for. The evidence persuades me that the landlords acted responsibly in responding to those issues when brought to their attention. They visited the premises immediately when the tenants raised concerns about the mould and offered remediation. The leaking shower was attended to promptly and when the tenants requested that a kitchen blind be repaired, that too was attended to swiftly.
In those circumstances, I do not consider that it would be just to make an award of exemplary damages against the landlords, in addition to the compensatory awards made above

Did the landlords breach the tenants right to quiet enjoyment?

Section 38 provides that: “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, though, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. (3) Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act.”
There is no evidence to suggest any harassment of the tenants by the landlords.
The evidence does not support the tenants’ contention that the landlords committed an unlawful act by unlawfully entering the premises. Section 48 RTA, which makes a landlord’s entry into premises unlawful if done without proper notice, expressly provides that, “In this section premises does not include land or facilities” (s.48(7)
There is no suggestion that the landlord entered the dwelling itself without notice so here is no evidence of an unlawful act having been committed.
On Sunday morning 1st August 2023 at 9:09 AM the tenant text the landlord, “Hello George. Can you and your workers please keep your voices down. I have finished work at 7:30am this morning and you are right outside our bedroom making a lot of noise.”
The landlord’s evidence is that the tradespeople were there to do work on the garden stairs at the landlords’ nearby home, about 5 or 6 metres from the bedroom window of the premises. The landlord says that the work was not done and once the tenants’ text was received the landlords sent the workers home.
On 20 February 2023 the tenants txt the landlords, “Hi George. I was alarmed to hear that your workers have been accessing the property to complete work on your property. As per the tenancy agreement laws this is illegal without prior consent....” The landlord responded, “I agree completely with everything you stated in your e-mail. As I told [Tenant] on the phone it simply slipped my mind to advise you that we will have people doing some work today. Only found that out this morning......once again I sincerely apologise for this and thank you for your understanding.”
The tenants also refer to an occasion when Mr Kondic let them know that he would be using the outside tap at their property. They say (rightly) that they should have been asked, not informed, but on the evidence presented I have little doubt that any objection they had would have been respected by the landlords.
In their oral evidence, the tenants raised additional issues concerning the way the landlords and their family used their nearby home in a way that the tenants say interfered with their privacy and quiet enjoyment of their premises.
The tenants are entitled to normally occupy the premises as their home. The landlords are entitled to do the same in their home.
The evidence provided does not prove approve an ongoing breach of the tenants’ right to quiet enjoyment of the premises by the behaviour of the landlords and/ or the landlords’ family.
The specific instances referred to above do amount to an interference with the tenants’ quiet enjoyment of the premises. It appears the workers left a gate open which was unsatisfactory. However, as the landlord immediately took steps to preventing ongoing disturbance once made aware by the tenants, I do not find it proved that the tenants were caused a loss or sufficient inconvenience as to warrant an award of compensation.
As the tenants have succeeded with claims, I reimburse the filing fee.

Tenancy Tribunal case 4621049 — Mould & damp at 5A Ponui Place, Mairangi Bay, Auckland 0630

Tenancy Tribunal case 4621049 — Mould & damp at 5A Ponui Place, Mairangi Bay, Auckland 0630

Order

Reasons

Were the premises provided in a reasonable state of cleanliness?

Were the premises in a reasonable state of repair?

Should exemplary Damages be awarded?

Did the landlords breach the tenants right to quiet enjoyment?

Order

Reasons

Were the premises provided in a reasonable state of cleanliness?

Were the premises in a reasonable state of repair?

Should exemplary Damages be awarded?

Did the landlords breach the tenants right to quiet enjoyment?