What was Tenancy Tribunal case 4622955 about?

The tribunal order states: The landlord must pay the tenant $2,140.44, immediately, as set out in the table

How much money was awarded in case 4622955?

Compensation: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Water Filter: $120.00 awarded to tenant

What type of tenancy dispute was case 4622955?

The dispute type was not classified.

Where can I read the official tribunal order for case 4622955?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9681027-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4622955 about?

The tribunal order states: The landlord must pay the tenant $2,140.44, immediately, as set out in the table

How much money was awarded in case 4622955?

Compensation: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Water Filter: $120.00 awarded to tenant

What type of tenancy dispute was case 4622955?

The dispute type was not classified.

Where can I read the official tribunal order for case 4622955?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9681027-Tribunal_Order_Redacted.pdf.

Unit/Flat 9, 462 Kuaotunu Wharekaho Road, Kuaotunu, RD Tenancy Tribunal Case 4622955 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4622955 — net $2,140.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation unlawful premises	$2,000.00	Compensation unlawful premises
Water filter	$120.00	Water filter
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,140.44
Total payable by Landlord to Tenant	$2,140.44

Both parties attended the hearing. The tenant appeared in person. The landlord appeared by Audio Visual Link. Jurisdiction

The landlord / respondent has raised the preliminary issue of whether the Tribunal can hear the claim.

The property is set in an idyllic bush setting on the [location]. The landlord views the property as an ideal place to escape and relax. The land on which the property sits appears to be in shared ownership with similar dwellings nestled in surrounding bush.

The property has been described as unique. I have been provided with photographs. The property was constructed about 40 years ago and is presently owned by the landlord, who seems to have a significant sentimental attachment to it. The property is made of clay and concrete with a corrugated iron roof. There are two small dwellings, one containing a bedroom, kitchen and living area, and the other used as a bedroom. The electricity supply is collected by a solar panel. The property has a small bar fridge / freezer powered by gas. Cooking is also done by gas. There is no council sewerage system or reticulated water supply. The grey water from the kitchen and shower is discharged onto the ground outside. The toilet flushes into a bathtub which has been buried. The water supply is provided by a spring located uphill from the property, which is collected and then gravity fed into the property.

The landlord states that when not being used by themselves they had offered the property to friends and family to stay for short periods on an informal basis. However, as they planned to be out of the country for at least a year, they decided to offer the property for a nominal rent of $250.00 per week, which they would use to maintain the property when they returned. The property was offered by word of mouth and via social media.

The landlord states that they had no intention to enter in a tenancy agreement, or at least one that was bound by the provisions of the Residential Tenancies Act 1986 (The “Act”).

Following an exchange of emails and a viewing by the tenant, the parties agreed that the tenant would occupy the property from 01 June 2023 to 01 January 2025. On 17 May 2023, the tenant invited the landlord record agreement in writing. The landlord replied “Okay, I totally understand. Are you able to be more specific on what you would like to cover? i.e., is it the money thing / length of time / anything else? The thing is , as an official rental our home is not suitable for tenants right now ( if we were to make an official rental document we would need to cover railing on all bridges to “ cover” us in case anything were to happen to you guys, we would need gauze protection around all fires , etc, etc) it basically changes everything and we’d need to do a lot more work on the property to make it legitimately safe for you guys. Does that make sense. The landlord went onto state that they were looking for someone they trusted, and who would, “treat the property as their own.”

The agreement states the occupancy will commence on 01 June 2023 and end 01 June 2025, that the tenant may bring the agreement to an end at any time , and the tenant will pay $1000.00 into the landlord’s bank account at the start of each month. A month’s rent is to be paid in advance, which would then be used as the last month’s rent. The tenant’s first payment was for a total of $2000.00. Law

Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 of the Act provides that the Act applies to all residential tenancies unless specifically excluded.

Section 2(1) of the Act defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy,’ and ‘tenancy agreement’ are defined as: -residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful -tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy -tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement

Section 5 of the Act sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 of the Act provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply. Decision on jurisdiction

In this case the property is intended for occupation as a place of residence. The landlord has granted the tenant, through an express written agreement, the right to occupy the property. I am satisfied that the parties have entered into a residential tenancy agreement as defined and are therefore subject to the provisions of the Act.

I have been through each one of the circumstances where a tenancy may be excluded from provisions of the Act and am not satisfied that any of them apply. Despite the landlord’s intention to avoid the provisions of the Act, the relationship between the landlord and tenant is one that , in my opinion, is subject to the provisions of the Act Tenant’s claims

Having established that the Tribunal has jurisdiction, I have been asked to continue and deal with the substantive claims.

On or about 06 June 2023, and while the landlord was still available, there was a significant flood at the property. Situated on the side of a hill. During a significant weather event water flowed down the hill overwhelming the drainage and inundating the property. The landlord attended the property and assisted the tenant clean up.

The tenant then reported that the water from the spring to the property was discoloured and contained sediment. The tenant stated they had been advised that the water would be temporarily discoloured following heavy rain, but that it had remained unusable for too long. The tenant stated they installed a filter to the tap in the kitchen.

On or about 14 June 2023, the tenant advised the landlord that they had detected mould in the second dwelling, which contains the second bedroom.

Unfortunately, there was another significant weather event on or about 18 June 2023, resulting in more flooding in the area, although not as catastrophic as the earlier event. On this occasion the landlord was unavailable. With the likelihood of further extreme weather events, the tenant raised concern that the drainage, which consisted of a trench dug in front of the main dwelling was inadequate. The landlord was unable to respond. The tenant states that following the second flood they discovered, having been advised that there was a septic tank, that waste from the toilet emptied into a submerged bath, which, due to inadequate coverage had become inundated by floodwater, and had overflowed. The tenant stated that a closer inspection of the property revealed that grey waste from the property was discharged directly onto the ground outside, where, as the landlord confirmed, it was left to filter through the soil.

In a detailed emailed dated 28 June 2023, the tenant raised a concern that following rain fall, the property appeared to retain water that leak through the walls and up through the floor, creating a moist and damp environment rendering the property uninhabitable. The tenant advised the landlord they felt that issues with the property had not been fully disclosed and demanded a full tenancy agreement be provided.

The landlord replied stating “we lived in the house for 3 years prior and were fine with it the way it was, and we don’t personally think the issues talked about are major. I think all this rain has made it a lot more noticeable, but the rain won’t be forever.” Considering the increasing frequency of significant weather events affecting the [town] the landlord may wish to revisit this view. The landlord went on to state that the tenant was free to leave but should not blame the landlord for their predicament.

Subsequently the relationship appears to have deteriorated. The tenant states they developed respiratory ailments whereupon they decided the property was no longer habitable. On 02 July 2023, the tenant gave notice to vacate the property on 31 July 2023. The tenant then vacated the property on 21 July 2023. The parties attempted to reach an agreement concerning a refund of the rent. Initially the landlord proposed returning $500.00, then $1000.00 and reimbursement for the water filter. The tenant however insisted on a full refund. The matter remained unresolved, and the tenant filed their application on 05 July 2023.

The tenant claims are that the property did not meet the Healthy Homes Standards (“HHS”), section 45(1) (bb), that the landlord has failed to provide the property in a reasonable condition, section 45(1)(b), and has failed to comply with building and health and safety regulations section 45(1)(c).

A failure to comply with any of these provisions is an unlawful act for which the Tribunal, under section 109 of the Act, may, after considering the intention of the party committing the unlawful, the effect of the breach, and the public interest award exemplary damages of up to $7,200.00.

The tenant claims that the landlord has failed to provide adequate drainage, failed to provide a property that is free from moisture and dampness leading to the formation of “black” or toxic mould. That the landlord failed to provide a potable source of water, failed to provide adequate means of sewerage collection, failed to ensure the property was properly ventilated, and failed to provide an approved form of heating in the main living room.

The tenant is seeking compensation in the form of a full refund of the rent paid, which I am advised is $2,130.00, plus compensation of $120.00 for a water filter the tenant installed for the tap in the kitchen. In addition to compensation, the tenant is seeking exemplary damages. Law

The onus of proving these claims rests with the tenant. The standard of proof is on the balance of probabilities. The tenant must establish more likely than not that the landlord has by act or omission breached the terms of the agreement or provisions of the Act.

In this case the HHS come into effect within 120 days of the commencement of the tenancy.

Until the healthy homes standards under s 45(1) (bb) RTA and the Residential Tenancies (Healthy Homes Standards) Regulations 2019 come into force, the minimum standards for residential housing are set out in the Housing Improvement Regulations 1947

Section 45(1)(c) provides that landlords must meet any building codes and regulations that apply to residential tenancies. These include the Housing Improvement Regulations 1947 (“Regulations”) which set out minimum standards for residential premises offered for rent.

The relevant regulations in this case are Regulation 6, which states that main living spaces must have a fireplace and chimney or approved form of heating; Regulation 7, which states that kitchens must have a potable source of water, Regulation 11, which states that habitable rooms must have a adequately sized windows that open; Regulation 14, which states that properties must have efficient drainage for the removal of storm water, surface water and groundwater; Regulation 15, which provides that a property must be free from moisture and dampness; and Regulation 16, which states in cases where there is no sewerage system there must be an adequate sewage tank, or another means of disposal.

The overarching obligation to provide and maintain the property in a reasonable state of repair is contained in section 45(1)(b). A “reasonable state of repair” requires an objective assessment of the evidence, taking into account the age and character of the property.

The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe 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. Decision

There is no dispute that the property experienced flooding. However, there are however no photographs showing the drainage at the property, making it difficult to make an independent assessment as to its adequacy. The drainage may have been efficient when dealing with normal weather conditions but unable to cope with more significant rain fall.

There are close up photographs of a wet patch of floor in the kitchen, along with another close up of the floor showing a white powdery substance that the tenant claims is mould. The tenant has produced a photograph showing what appears to be mould on two pillows and a futon mattress, both had been provided with the property. There is a photograph of a wall in the second bedroom dwelling which appears to show dampness on one of the walls. I am satisfied that more likely than not the property was experiencing excessive moisture and dampness. There is insufficient evidence to determine that the mould shown in the photographs is “black” or toxic mould. There are no photographs of any mould on the walls.

There are no photographs of the submerged bathtub or the waste pipe from the kitchen. The landlord has confirmed that the grey waste from the kitchen discharges on the ground as described. Nevertheless, there is insufficient evidence that this does not comply with local council by laws. The description of the sunken bathtub has also been confirmed by the landlord. Based on this evidence, I find it more likely than not the system for sewerage collection does not meet the requirements of the Regulations.

There is insufficient evidence to find that the windows at the property do not comply with the Regulations.

Potable water is water that is free from contaminates and can be safely used for drinking, washing dishes and personal hygiene purposes. The water shown in the photographs, including one showing the water running from the tap, is brown and contains sediment. It appears that this was remedied to some extent by the instillation of a filter. The photographs of the property show a fireplace and chimney in the main living room. Although the tenant doubts that it complies with council bylaws there is no evidence to suggest that it does not.

Due to the absence overseas the landlord has been unable to properly respond and investigate the matters raised by the tenant.

The landlord has made an admission at the time the agreement was entered that the property was not “ready” for residential rental purposes.

I am satisfied that the property did not meet the minimum standards concerning moisture and dampness, although I acknowledge that this was likely exacerbated by the significant weather events. The water was not a potable quality, once again affected by the unforeseen weather events, and the sewerage collection more likely than not does not meet the minimum standards for residential properties.

I am therefore satisfied that the landlord has failed to maintain the property in a reasonable state of repair and has not met the building codes and regulations applicable to residential tenancies. Compensation

Although not a claim made by the tenant, if satisfied on the evidence, the Tribunal may on its own initiative declare the property an unlawful residential premise under section 78A of the Act.

Under section 78A (2) of the Act “Unlawful residential premises” is defined as: Residential premises that are used for occupation for a person as a place of residence but – (a) That cannot be lawfully occupied for residential purposes by that person (whether generally or whether for the particular residential purposes which that person is granted occupation), and (b) Where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.

Section 36 of the Act provides that the landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.

Section 45(1)(c) of the Act provides that the landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.

I am not satisfied the landlord has taken all reasonable steps to ensure that, at the commencement of the tenancy, there was no legal impediment to the occupation of the premises for residential purposes. As stated, prior to the commencement of the tenancy the landlord has acknowledged that the property was not suitable for residential tenancies.

I am satisfied that at the material time the property was an unlawful residential premise as defined in section 78A (2) of the Act.

Section 78A(4)(a) of the Act gives the Tenancy Tribunal power to make a range of orders if the evidence establishes that the premises are, or were at any material time, unlawful residential premises, that the Tribunal may order the landlord to pay the tenant – The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.

Section 78A (5) states that even if the tenant does not apply for a particular order, the Tribunal may on its own initiative make an order under section 78A(4)(a), a worker order under section 78, any other order including an order for exemplary damages for failure to comply with section 45(1)(c).

In the case of Tenant v Presland and Co Trustee Company [2021] NZTT 4290197, the Tribunal analysed other Tribunal decisions dealing with “special circumstances” under section 78A(4)(ii), identifying the following relevant factors: a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of time he lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. j. Any other compensation or exemplary damages that are ordered

Although, the tenant has, with knowledge that the property did not comply, entered into the agreement, the provisions of the Act do not allow tenants to enter prohibited transactions or to waive their rights under the Act, see section 11 and 137 of the Act.

The flooding and resulting issues with moisture and dampness occurred soon after the commencement of the tenancy and endured until the tenancy ended a short time later. On the evidence, I am satisfied that the tenant suffered a loss of amenity for the entire period. The property should not have been offered for residential tenancies, and the landlord was aware of this fact. In this case the landlord has intentionally set about to avoid the provisions of the Act. There is an obvious public interest in discouraging landlords from doing so.

On balance I am satisfied that a full refund of the rent paid by the tenant is justified. The evidence produced suggests that the total amount paid was $2,000.00.

Dealing with the matter of exemplary damages for failing to comply with codes or regulations, over and above the compensation awarded. Taking into account the relevant factors, I decline to also make an order for exemplary damages. There is no evidence confirming the illnesses suffered by the tenant. As stated, I am not satisfied that the evidence establishes the presence of black or toxic mould. While the landlord was aware that the property did not comply, by the thinnest of margins, I am not convinced that it involved moisture and dampness, the water supply, the waste disposal, or sewerage. I accept that more likely than not the landlord was at the time unaware of these matters. In my view the failures to comply with the regulations, that I have found proven, have been exacerbated by the significant weather events, which were out of the landlord’s control. Without these events exposing the deficiencies in the property, I doubt that the claim would have been filed.

I award the tenant $120.00 compensation for the replacement water filter. Costs

As the tenant has been substantially successful, I order reimbursement of the filing fee. Name suppression

The tenant seeks name suppression. The landlord does not.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

The tenant has been substantially successful and is granted name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4622955 — net $2,140.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation unlawful premises	$2,000.00	Compensation unlawful premises
Water filter	$120.00	Water filter
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,140.44
Total payable by Landlord to Tenant	$2,140.44