What was Tenancy Tribunal case 4621314 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 4621314?

Compensation: Stress: $300.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Reimbursement Of Filters: $41.96 awarded to tenant

What type of tenancy dispute was case 4621314?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4621314?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9500712-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4621314 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 4621314?

Compensation: Stress: $300.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Reimbursement Of Filters: $41.96 awarded to tenant

What type of tenancy dispute was case 4621314?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4621314?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9500712-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4621314 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4621314 — net $3,341.96 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement of filters	$41.96	Reimbursement of filters
Compensation: stress	$300.00	stress
Exemplary damages	$3,000.00	Exemplary damages
Net award	$3,341.96
Total payable by Landlord to Tenant	$3,341.96

Claims and awards in Tenancy Tribunal application 4621314 — net $3,341.96 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement of filters	$41.96	Reimbursement of filters
Compensation: stress	$300.00	stress
Exemplary damages	$3,000.00	Exemplary damages
Net award	$3,341.96
Total payable by Landlord to Tenant	$3,341.96

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both party’s names and identifying details.
The landlord must carry out the following work to the premises, which must be completed within 2 weeks of the date of this order: a. Investigate and repair, if possible, the leak/hole above the heat pump. b. Provide the tenants with a dehumidifier for use until the roof is repaired and leaks cease.
The rent is to reduce by $5 per week to compensate for electricity use of the dehumidifier from the time the dehumidifier is provided until the leaks are repaired.
If the landlord fails to comply with Order 2 above, then the tenants may undertake the work and charge the landlord the costs of this work up to $2,000. These costs may be set off against rent payable.
The tenants are to pay the gas usage invoices when the landlord has provided them with evidence substantiating the amounts claimed.
[The landlord/s] must pay [The tenant/s] $3,341.96 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

These claims relate to an ongoing tenancy that commenced in November 2022. Neither party wishes to end the tenancy at this stage, however they have both brought claims before the Tribunal which I deal with individually below.
Before doing so, however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. All evidence and submissions provided by the parties has been considered in this light to form this decision, even if it has not been expressly mentioned in the decision.
I note that the tenants’ claim for reimbursement of the lint filter is consented to by [Property Manager 1] who had offered to reimburse the tenants the amount several months ago. Landlord’s application

Who is to pay for the gas usage?

There has been a disagreement between the parties as to whether the tenants should pay the gas invoices. This has arisen due to the way in which the invoices are compiled. The invoicing process is a little different to usual here as this is an apartment building with 20 units and a Body Corporate (BC).
There is one supply of gas to the building and as a result one invoice from the gas supplier: [The gas supplier]. Only the hot water for the apartments uses the gas supply. Each apartment/unit has its own Unit Flow Metre (UFM) which the BC monitors. The UFMs are in a locked cupboard and only accessible by the BC. The BC proportions the amount each apartment/unit is to pay on an assessment of their usage as taken from the UFM against the proportion of the invoice for the amount used (not the fixed rate).
However, the BC do not provide evidence of their calculations to the units, they just advise the amount owed. Further they only provided a copy of the whole invoice from [The gas supplier] when it was requested of them by the landlord. They rely on the BC Building Guide that says:
Each unit’s hot water consumption will be monitored, the cost for the hot water consumption will be on-invoiced to each unit.
The tenants say they should not have to pay the invoices without being able to see the exact calculation used in coming to their totals so they can assess whether the amounts are correct; specifically they want to see their usage. [Property manager 1] for [The property management company] says this is the BC usual process and as such the landlord has to abide by it.
Section 39 of the Residential Tenancies Act 1986 (RTA) states that landlords are responsible for outgoings that are incurred whether or not the premises are occupied, or incurred for common facilities, i.e. the fixed rate for the provision of gas or water. It also states that tenants are responsible for outgoings exclusively attributable to their use of their premise, i.e., the gas or water they specifically use.
Therefore, the landlord is required to pay the fixed charge associated with the provision of gas and the tenant is required to pay their usage of the gas. If the invoices do not come directly to the tenant, there is an implied obligation on a landlord to advise the tenant of the costs clearly and within a reasonable time frame. A tenant must be provided with the actual provider invoices and be able to clearly identify what is their usage. Further, a tenant’s obligation to pay for outgoings based on usage presupposes their usage can be accurately measured. This has been well established in precedent as discussed below.
Firstly, the case of Braganza v Saia (DC) CIV-2010-004-2024. In respect to the issue of a landlord's obligation to render water accounts promptly (which I consider is synonymous to gas accounts), the Judge held: "It is plainly incumbent on a landlord to set out with clarity what it is that he claims is due, as and when it falls due, and, when it comes to water, to provide the bills to the tenant as they fall due, so that the tenant may make any challenge to the supplier that he thinks is appropriate and make arrangements for payment in a timely fashion". [Paragraph 15].
Further, the Judge noted that: "If the tenant is to be asked to pay after the event with no opportunity to check the calculation, or to make provision for payment at the time, he is at a manifest disadvantage. It is down to the landlord to provide the detail as it falls due". [Paragraph 16].
The earlier case of Judge McElrea in Woollams v Simpson, CIV-2005-004- 1583, DC Auckland, 16 March 2006, is also relevant. In this case, the tenant had been presented at the end of her tenancy, with a claim for water rates for the three years of her tenancy. Judge McElrea stated: [11] In my view, there is an implied term in this tenancy agreement that the landlord would provide accounts to the tenant at regular intervals so as to enable repayment to be made. ... I imply such a term because it seems to me to be a necessary term to make commercial sense of the agreement. How can a tenant be expected to pay for a regular charge such as a quarterly charge unless it is told the amount of the charge from time to time? That makes nonsense of any attempt to budget, which presumably most tenants have to do, whether they be commercial or residential tenants. It makes nonsense of any proper concept of financial management as between parties to a commercial arrangement. ... [13] ... In my view, the implied term which I read into the Act and into this agreement is necessary in order to make the clause a workable one from a commercial point of view, and in order to decide this matter according to the substantial merits and justice of the case.
Accordingly, the landlord is obligated to obtain and provide evidence as to the calculations made to arrive at the invoiced figures. Essentially, the tenants are entitled to see their usage before they pay for it.
[Property Manager 1] is concerned that this is in contravention of the BC Rules which all apartment owners and tenants are required to abide by. However, I note that the requirement to pay the gas bills comes from the Building Guide only, not the Rules and no evidence has been provided that the Guide forms part of the Rules. Additionally, I do not find a direction to account for the invoices in greater detail in contravention of the Guide as it is the same process, just with more detail. Further, landlords cannot contract out of this obligation 1 .
Section 85 of the RTA directs the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes. This means that it is just that the tenants pay for the gas they used despite the accounting process being flawed when they have been provided with the calculations of their usage. Accordingly, I direct that the tenants are to reimburse the owner who has been paying the gas bills, if and only if, the BC is able to provide documented evidence as to how they reached the totals in those invoices. I do not make an order for them to pay a specific amount as the calculations have not yet been provided.
Further, the tenants are only required to pay the gas bills provided to them going forward if the BC supplies with the invoice, evidence as to how they calculated the amount. I would expect this evidence to include, but not be limited by the following: 1 S11 RTA a. Evidence of the consumption amounts, demonstrated on a regular basis for this apartment. This should include photos of the unit flow meters in order that the tenants can see the amounts monitored by the metre. Alternatively, they should be allowed access to the UFM in order that they can monitor their usage and be told of the dates of assessment by the BC. b. Evidence of the calculations used by the BC in determining the amount payable with direct reference to the [gas supplier] invoice. c. The [gas supplier] invoices. Tenants’ applications

Has the landlord failed to comply with s45 of the RTA?

Pursuant to section 45 of the RTA, a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety. In particular here, the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) and the Housing Improvement Regulations 1947 (the Regulations).
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 Residential Tenancies Act 1986.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. As to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise the landlord of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
I deal with each alleged breach separately as follows.

Was the apartment provided reasonably clean?

The tenants are of the view that the curtains were mouldy from the outset of the tenancy and there was mould on the wall above the ranch slider and on the high windows. They notified the landlord when they completed the ingoing condition report but got no response. It was not until they issued a 14-day notice on 24 April (14-day) that action was taken, although not for some months after (the work was done in June and July).
The landlord’s own photos certainly show markings on the curtains and walls although [Property Manager 1] disputes that this is mould. He says it is fair wear and tear and did not mean that the property was not provided as required, just that the curtains were old. Despite this he says they had the curtains, windows and walls cleaned in an effort to assist the tenants.
I consider that the fact that the curtains came back clean and white after being washed indicates that they were not provided in a clean way, whether the markings were mould or something else. This is a breach of s45(1)(a) of the RTA.
I also find it established in evidence that the high windows were very dirty, but not that the walls above the ranch slider were. [Property Manager 1] had both these areas cleaned in June and July to assist the tenants however they had lived with it for a number of months. This is also a breach of s45(1)(a) however I note not a major one given the windows are high and inaccessible.
I discuss monetary awards below however note that the tenants took no steps of their own to clean the mould/dirt from the respective areas which indicates their level of concern. I draw the parties’ attention to s49 of the RTA which requires an innocent party to a breach to take reasonable steps to mitigate any loss they suffer as a result of that breach. The tenants did raise the issue with the landlord however cleaning would have been a reasonable step to also take (and subsequently seek compensation).
At the hearing [The tenant/s] did raise the issue that the outside of the windows has still not been cleaned but I accept the landlords reasoning for this (inability to gain access). I also assess the impact of this on the tenants as minimal. Were the bathroom door and shower door provided in a reasonably maintained way?
As the tenants noted to [Property Manager 2] at the outset of the tenancy, the bathroom door could not be closed without considerable force being applied to it and the shower door was broken to the extent that it would regularly slip and could not be closed fully without significant manoeuvring. There were also related issues with the bathroom door lock and the shower handle. There was an attempt to repair the shower door on 9 December, but it did not work. They were eventually fixed in July, well after the 14-day notice time frame.
[Property Manager 1] is unsure of the reason for the delay prior to his management of the property which started in March, but says he got on to it as soon as he was aware. This is despite the fact that [Property Manager 2] ostensibly told the tenants in December that there was an outstanding work order from the previous tenancy to repair the shower door.
Regardless as to who was managing the tenancy, the agreed fact is that the tenants did not have an easily functioning bathroom or shower door for the first eight months of their tenancy. They could still use the bathroom, but it was difficult. It was fortunate that the tenants are a couple and so privacy was not as significant as it would have been had they had flatmates.
Eight months is an unreasonable amount of time and accordingly a breach of s45 of the RTA. I discuss repercussions below.

Has the landlord breached the HHS heating standard?

As this tenancy commenced on 21 November 2022, the compliance date for the HHS for this tenancy was 21 March 2023. It is not disputed that the heat pump was only installed 23 May. Accordingly, [The property management company] have failed to comply with the HHS within the required timeframe, and breached Regulation 5. 2 These are breaches of s45 of the RTA.
[Property Manager 1] accepts the breach but submits that they did not intentionally evade the requirement as they were subject to various delays. Firstly, the calculations used in the initial report were wrong and so they had to have it reassessed which was done in February 2023. Then they were given the run around by the installer and also the report writer which further added to the delays.
[The tenant/s] submits that [The property management company] were intentionally negligent here in ensuring their compliance. She says they were well aware of the requirements and yet chose not to take action until after the 14-day was served on them. Her reasoning is as follows: i. The original HHS report that assessed the property as incompliant with the heating standard was compiled in 2021. Therefore, the property was incompliant during the previous 2-year tenancy and well into theirs. ii. She raised the issue of heating and compliance with the HHS prior to the tenancy, at commencement and then regularly throughout the tenancy. iii. It was not until well into the tenancy that actual steps were taken to install the heat pump.
[The property management company] are a professional property management company. They were aware of their legal responsibilities from 2021. Despite 2 Housing Improvement Regulations 1947: Regulation 6 Every living room shall be fitted with a fireplace and chimney or other approved form of heating. this, they did not take action until almost two years after the initial HHS report, to ensure their compliance. They conducted a previous tenancy knowing the property was incompliant and then were slow to act during this one, despite [The tenant/s] persistent communications on the issue. As a result, the tenants were without a source of heating for the first six months of their tenancy.
I accept [Property Manager 1]’s submission that his owner has been subject to the increased cost of living and economic difficulties that have plagued the nation over the last few years. However, as discussed at the hearing, running a tenancy is a business and if the costs of doing so are prohibitive, then the business should be reconsidered.
Accordingly, I find that the landlord has breached s45 intentionally, and I discuss the related claims for compensation and/or exemplary damages below. In doing so I take into account the above and the tenants’ submissions that they had very little natural sunlight and as the apartment is an open space (with the bedroom being a mezzanine to the living room) it was hard to heat. I do note that it was not sufficiently cold that they had to borrow or buy their own heaters, but combated the cold by dressing warmly.

Has the landlord breached the HHS ventilation standard?

Again, it is not disputed that the external extractor fan in the kitchen was only installed on 11 May: outside of the statutory timeframe. [The tenant/s] had also raised this issue prior to and during the tenancy. Initially [Property Manager 2] told them that the apartment was exempt due to the inability to install external vents and said the issue was combated by charcoal filters in the internal extractor.
[The tenant/s] asked in the entry condition report when the filters had been previously replaced as he said they were in poor condition. [Property Manager 2] did not reply to this but at the inspection in February three months into the tenancy, agreed they needed to be replaced.
Subsequently however when [Property Manager 1] took over the management, he managed to secure BC approval to externally vent and found a contractor willing to undertake the work. It took some time he says but it was completed at great cost to the owner.
The tenants say that the impact of the lack of proper ventilation in this regard was considerable. The apartment only has two high mechanically opening windows and a ranch slider. If they opened these, they lost heat, if they did not, the apartment (including their bedroom given it was on the mezzanine floor and open to the living/kitchen) was filled with smells and occasionally smoke. To combat this and the mould discussed earlier, they purchased an air purifier at significant cost.
Clearly the ventilation standard has been breached and [The property management company] was aware of this from 2021. Where [Property Manager 2] got the information that the apartment was exempt from the standard is unclear given the HHS report made it clear that the current extractor was insufficient. He was also on notice from the outset that the filters were not in good condition.
Accordingly, s45 was breached with respect to the HHS ventilation standard and the general state of the extractor fan. I assess monetary awards below taking into account the above, but also the well-known difficulties with BCs when it comes to externally venting in apartment blocks like this.

Is the leak a breach of s45?

There is a roof leak into the balcony and living room of the apartment. The tenants consider that the landlord has failed to address this issue in an appropriate way however [Property Manager 1] submits they have done all they can.
The timeline of the issue is as follows: a. On 21 March [The tenant/s] notified [Property Manager 2] of the leak. [Property Manager 1] contacted the BC who conveniently had a plumber checking the roof that day anyway. He reported back that there was no evidence of any leak that required fixing. b. In the 14-day notice on 24 April the tenants raised the issue of a leak into the balcony (only) saying “This is not a major concern for us but would be happy for you to also repair this”. c. They again emailed about it several times in June. [Property Manager 1] did contact the BC who asked if it was the same leak as in March. It is unclear whether they got a response. d. On 20 July the tenants again reported the leak which [Property Manager 1] again passed on to the BC. This resulted in the BC contracting their plumber to again look at the issue. He allegedly told the tenants verbally that the roof is in a bad condition and has needed to be replaced for some time. Ostensibly, he also said he had fixed holes previously and been up to work on it a number of times. e. On 21 September the BC advised [Property Manager 1] that sections of the roof would be replaced although the time frame for that is unclear.
On the basis of the plumber’s advice to them, the tenants wondered whether the BC or landlord were aware of the issue all along but did not want to do the repairs until they were forced to. It is difficult to get a clear perspective on the matter given the plumbers report to the BC who in turn passes limited information on to the owners. Although the plumber’s words to the tenants are concerning, I do have to weigh up that this evidence is hearsay. Upon consideration of the evidence, I am satisfied that the landlord was not aware of any issues with the roof until the most recent plumber’s report.
[Property Manager 1]’s submission is that he has done all he can in advising the BC as they are responsible for the roof. He considers it would be unfair to penalise the owner for their delays which are out of his control. He submits that the leak is not extensive and therefore a rent rebate would be inappropriate.
The tenants keep permanent trays in the corners of the living room and can hear the water dripping from their bedroom. This disturbs and worries them, and they do not feel safe living with a constant leak. The leak occurs sporadically with heavy rain and drips from three areas of the living room wall.
There was dispute regarding whether [The tenant/s] had shown [Property Manager 1] the developing hole above the heat pump which is clearly concerning. [Property Manager 1] is adamant that he was not aware of it and agrees to a work order 3 now to investigate it.
In a further effort to mitigate the issue, [Property Manager 1] has consented to provide the tenants with a dehumidifier to use when the leak is occurring until at least the roof is repaired. I consider it reasonable that a $5 per week rent reduction is applied to compensate the tenants for the electricity the dehumidifier will use. This is to apply from when the dehumidifier is provided, until the leaks are repaired.
I do not find that the landlord has breached s45 here. They have responded to the notifications of the leak and followed up with the BC. In saying that, the tenants are still living with a leak. This Tribunal has decided in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
The evidence has established that this leak is not extensive as it only occurs in very heavy rain and does not affect the tenants’ use of the premise. Accordingly, I find the work orders sufficient response to this issue given the roof repairs are underway. The claim for compensation/exemplary damages in this respect is dismissed.

Are the cracks a breach of s45?

3 Section 78 RTA

The tenants are concerned that the property is not structurally sound. There are cracks in the living room walls which have concerned them, alongside the roof issue and the seismic strengthening that is taking place in other areas of the building currently.
In response to their concern [Property Manager 1] examined the cracks and sent pictures to the BC. They in turn sent the pictures to their engineers who responded with the following: “None of them signify any structural action of concern!...None of those in the photos look to be such as to indicate other than minor and “non threatening” effects”.
The discussion in the hearing on the issue resulted in [Property Manager 1] agreeing to actively monitor the cracks and if they increase, arrange for the engineer to look at them. In light of the evidence on the issue, I consider this an eminently sensible plan and make no further orders on the matter.

Was the HHS information provided upon request?

The tenants asked for the HHS report several times into the tenancy. They had been provided with the 2021 report but assumed there must be a more up to date one given the 2021 one had assessed the property as incompliant two years prior. They were not provided with anything until the further report was compiled in May 2023. They had also asked for the exemption certificate from the ventilation requirement as relied on by [Property Manager 2]. He naturally did not provide it, as there was none.
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. Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A RTA.
I do not find it established that [The property management company] has breached this requirement. They provided the original HHS report and then when a further one was obtained, they also provided that. There were no specific documents requested or that could be provided. Accordingly, this claim is dismissed.

What monetary orders should be made?

[The tenant/s] seek compensation, a 50% rent rebate and/or exemplary damages for the breaches found above. They believe they have overpaid rent because of the condition of the tenancy. They also consider [The property management company] have been intentionally misleading and deceptive on these matters.
I do not find it established in evidence that [The property management company] have acted in an intentionally misleading way, nor did they intentionally delay, however they were clearly negligent in meeting their responsibilities. They have not met the time frames statutorily required by the HHS, nor did they comply with the 14-day notice within time. All of these issues were long standing.
The compensation the tenants seek is in the form of reimbursement for their air purifier and an unspecified amount for stress. Stress
The Tribunal has the authority 4 to award damages for stress and inconvenience. It does so on the basis that the law of contract allows such damages where the purpose, or one of the purposes, of the contract is the peace and comfort of the party and, in the case of a tenant, that is regarded as one of the purposes of a tenancy agreement.
Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply and the tenant must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate
As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth, and a tenant must expect some disruption or inconvenience from to time to time. Commonly there is difference and negotiation and often this is because of disagreement over rights and obligations. Therefore, some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest.
The landlord here has breached their obligations. Frustration and disappointment to those breaches was an obvious corollary, particularly given [The tenant/s] went to lengths prior to the tenancy even commencing to ensure the property was lawfully compliant.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages: 4 77(2)(n) RTA “ A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Adopting that formular, I consider this a situation of inconvenience, frustration and disappointment. As such, I find that an award of $300 is reasonable in the circumstances. Air purifier
The tenants claim $499 being the cost of the air purifier they purchased a week into the tenancy. They say this was necessary because of the mould that was present when they moved in, the lack of an externally ventilated kitchen extractor fan and the layout of the apartment (the lack of windows meaning they could not obtain good air flow). They say they got sick immediately upon moving in because of these factors experiencing red, itchy eyes. These stopped when they used the air purifier.
They say they used it after cooking every time until the extractor was installed and regularly throughout the day, however, do not need it often any more now that the heating and extractor have been installed and the mould removed.
Once a breach has been established, the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party. Here [The tenant/s] purchased an air purifier a week into the tenancy. At that stage no breach had been established. Matters had been raised with [The property management company] but an appropriate time to remedy them had not yet lapsed. Accordingly, I do not find it reasonable for the landlord to reimburse [The tenant/s] for his purchase. This claim is dismissed. Rent rebate
The tenants seek a 50% rent rebate for the deficiencies in the property they have experienced throughout the tenancy. [Property Management 1] submits that the tenants had full use of the premise throughout and should not be entitled to such a refund.
The RTA expressly refers to rent abating in situations where the property is significantly damaged to render it unusable or uninhabitable, or it is unlawful. This property is none of those things. Additionally, a rent rebate is usually only considered by the Tribunal when there is a lack of amenity. Therefore, if a tenant is essentially not getting what they paid for, they are entitled to a corresponding amount of their money back. Examples may be if the bathroom cannot be used because of a hole in the floor, or a bedroom has a leak in it to such an extent that it cannot be slept in.
These tenants have certainly faced issues. However, I consider them more of inconveniences rather than matters that meant they could not use part of the facilities. They have been able to use all areas of the home in the way they were intended to be used, accordingly I do not consider a rent rebate appropriate in the circumstances and dismiss the claim. Exemplary damages
As discussed above, the landlord has breached s45 with respect to failing to provide the premise in a reasonably clean way, failing to maintain the property and failing to comply with the HHS and Regulations. These are unlawful acts.
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 interest of the other party, and the public interest. See section 109(3) RTA.
I consider the intentional element of s109 met as [The property management company] is a well-established property management company, well aware of their obligations. In assessing an award of exemplary damages, I take note of the following: a. Several unlawful acts were committed, relating to the heating, ventilation and way the property was provided and maintained. b. Many of these issues pre-dated the tenancy and could have been remedied prior to the tenancy commencing. c. [The tenant/s] was a diligent tenant. She has raised areas of concern before she even moved in. Despite this, it was some eight months into the tenancy before all items were attended to. d. The impact on [The tenant/s] has been significant. They have had to spend a considerable amount of time following up matters with their property managers, going to the extent of issuing a 14-day and filing a claim with the Tribunal. They have lived without heating and adequate ventilation. Their bathroom has been difficult to use. Most of all they have felt let down and frustrated by their landlord, to whom they pay a not insignificant amount of money each week. e. It is clearly in the public interests that landlords, particularly those who are professional management companies take their legislated obligations seriously.
Having assessed all of the above, I am satisfied that an award of $3,000 exemplary damages is reasonable in the circumstances.

Should the filing fee be awarded?

As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall.

Should suppression be granted?

Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application. As I consider both parties successful to an extent with their positions, I allow both parties’ applications for suppression.

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who is to pay for the gas usage?

Has the landlord failed to comply with s45 of the RTA?

Was the apartment provided reasonably clean?

Has the landlord breached the HHS heating standard?

Has the landlord breached the HHS ventilation standard?

Is the leak a breach of s45?

Are the cracks a breach of s45?

Was the HHS information provided upon request?

What monetary orders should be made?

Should the filing fee be awarded?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who is to pay for the gas usage?

Has the landlord failed to comply with s45 of the RTA?

Was the apartment provided reasonably clean?

Has the landlord breached the HHS heating standard?

Has the landlord breached the HHS ventilation standard?

Is the leak a breach of s45?

Are the cracks a breach of s45?

Was the HHS information provided upon request?

What monetary orders should be made?

Should the filing fee be awarded?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions