What was the outcome of Tenancy Tribunal case 4627172?

The tribunal order states: Monique Fuller and Everett Fuller must pay Stirling Real Estate Limited As

How much money was awarded in case 4627172?

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 4627172?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4627172?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794079-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4627172?

The tribunal order states: Monique Fuller and Everett Fuller must pay Stirling Real Estate Limited As

How much money was awarded in case 4627172?

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 4627172?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4627172?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794079-Tenancy_Tribunal_Order.pdf.

6A Randwick Crescent, Moera, Lower Hutt 5010 Tenancy Tribunal Case 4627172 — Rent arrears

Order

Monique Fuller and Everett Fuller must pay Stirling Real Estate Limited As Agent For Richard Roil Trust $1,982.86 immediately, in accordance with the following table:
All other claims are dismissed.

Reasons

This tenancy commenced in September 2022 as a fixed term contract due to end on 9 September 2023. In May/June there was an issue with the gardener and some discussions between the parties over maintenance. Shortly thereafter Ms Fuller gave notice on 11 July that they would be vacating on the 19 th , thereby ending the tenancy early.
Initially the landlord applied for rent arrears and compensation post tenancy and that was ordered by the Tribunal on 4 October. However, Ms Fuller subsequently filed a cross application for a reduction of the fixed term tenancy and compensation, and an application for a rehearing which was granted. Accordingly, this decision relates to the landlord’s initial application by way of rehearing and Ms Fuller’s cross application.
Both the property management company, represented by Mr Roos, and the owner Mr Roil (collectively the landlord) attended the hearing along with Ms Fuller. The landlord withdrew their claim for costs with respect to ending the tenancy early at the hearing, and just seek rent arrears.
The questions for the Tribunal are as follows: i. Should the fixed term tenancy be retrospectively reduced? ii. How much rent arrears should be paid? iii. Has the landlord breached their maintenance obligations? iv. If so, what monetary orders should be made?
I detail each claim separately as follows. Before I do however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal applicants are required to establish their 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. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. In summary, it is up to the parties to establish their case.
Considerable evidence was provided in these applications, and whilst it has not all been referred to for brevity reasons in this decision, the parties can be assured it has all been considered. I apologise for the delay in the issuing of this decision and thank the parties for their patience.

Should the fixed term tenancy be reduced?

Ms Fuller applied on 5 September to retrospectively end the fixed term tenancy on 19 July when they left, rather than on its due date of 8 September. She submits that they were forced to vacate the home because of its unacceptable state. She says she had been asking Mr Roos from the start of the tenancy to attend to a multitude of maintenance issues, but he was procrastinating on them to their detriment. Given his behaviour and that she has asthma and a young son, when she found out she was pregnant, she realised they could no longer live there safely and had to move out.
In her notice to vacate Ms Fuller states that the property is “no longer a healthy home. The mould in the bathroom is everywhere. You have known about this since the first inspection and chosen to do nothing, as you have with all our requests of property maintenance.”
She says that it was only when she indicated they would be leaving that Mr Roos confirmed they would look into their concerns despite having known about them from the commencement of the tenancy. Ms Fuller says they worked hard to get into a position to move even though they were suffering substantially, and they moved as soon as they financially could.
Ms Fuller explains that they left the property rather than make an application to reduce the tenancy as at that time she was not aware she was able to make such an application. She says she did earlier tell Mr Roos orally that they would be leaving due to the issues which is why she stopped paying rent in June, and then gave two weeks’ notice on 11 July. They keys were returned on 19 July.
She also says that as the landlord had full access to the property from 19 July, she should not have to pay rent for that period. She submits that they are only seeking to end the tenancy seven weeks early which is not unreasonable given what they went through.
Mr Roos does not recall discussions regarding ending the tenancy early and says the first he heard of it was on 11 July. He listed the property for rent on the 20 th of July and the first application that was acceptable was received on the 21 st of August. These tenants were able to move in immediately however they wished to undertake some renovations so that tenancy did not start until 9 September. On this basis they only seek rent arrears to 21 August.
The landlord submits they mitigated the situation to the best of their ability but could not advertise earlier as the Fullers did not agree to them doing so. They say they had no idea the Fullers were wanting to leave until two weeks before they did, and suspect it was probably because of the argument with the gardener which was a misunderstanding. The law
The Tribunal may only reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) RTA.
The jurisdiction in s66 is an extension to the doctrine of frustration found in the general law of contract. In most cases, s66 is used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same bargain. Given the sanctity of contract, the threshold is high.
The first issue to consider therefore is whether there has been an unforeseen change in the tenant’s circumstances.
The term “unforeseen” is a legal term defined by reference to the reverse (foreseeability). In cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage) there is a body of case law which has established that: (a) foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; (b) an outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; (c) The term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk”.
Having thoroughly considered the evidence, I do not find it established that the Fuller’s circumstances changed unforeseeably. There was mould in the bathroom when they viewed the property and that did not change. There is no evidence of the mould’s impact on the Fullers worsening. Similarly, they had to engage with Mr Roos over maintenance issues which was foreseeable. I do not consider Ms Fuller’s pregnancy an unforeseen change in circumstances either.
I also do not consider that any change was to an extent that would justify ending the tenancy early. They were dealing with a frustrating and difficult situation; however, their circumstances did not actually change. Essentially, the Fullers moved out because Mr Roos was not taking their maintenance concerns seriously, not specifically because their circumstances had changed.
Importantly, they did not meet their mitigation responsibilities pursuant to section 49 of the RTA. There were options open to them to address the situation to which they did not avail. They did raise their maintenance concerns with Mr Roos but when he failed to address them, they were obliged to follow the procedure set out in the RTA. That is to firstly issue a 14-day notice to remedy to provide the landlord with a specific time frame to address the concerns. Failing that, they could have applied to the Tribunal for relief. Tenants are not lawfully entitled to just stop paying their rent and move out if the landlord is failing in their obligations.
Even if I am wrong in my finding that the tenants’ circumstances changed unforeseeably, I do not find that their hardship in remaining several more weeks until the tenancy ended would have been more than the landlord’s financial hardship in ending the tenancy early. This is because they were not far from the end of the tenancy and could well have given notice pursuant to section 60A(2)(c) of the RTA to end the tenancy upon expiry of the term. This would have been the more lawful action than just leaving.
Accordingly, I do not find the requirements of section 66 met and as such must decline the application to reduce the fixed term tenancy.
With respect to the landlord having access from 19 July, whilst I accept this was the case, the tenants were also entitled to access, as until the tenancy had formally ended, given it was a fixed term, it continued. I also accept Mr Roil’s evidence that work did not commence on the property until after 21 August.
Accordingly, I approve the landlord’s claim for rent to 21 August 2023. As the bond has already been transferred to the landlord, that is taken into account in the order.

Did the landlord breach their maintenance obligations?

The Fullers claim that the landlord has breached their obligations under section 45 of the RTA to provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (the Regulations) and with any relevant enactment in relation to buildings, health and safety.
I consider each of their claims separately as follows. Healthy Homes Standards
Ms Fuller claims that the landlord has breached their obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Her reasoning for this is that the bathroom was exceptionally mouldy, and the home was very cold.
Ms Fuller also points to the HHS report which sets out where the house has failed. She submits that where there are exemptions, there is no explanation as to why the property is exempt and considers that an exemption does not equate to compliance.
Ms Fuller says the property was not sufficiently insulated as it was extremely cold and as such their heating bills were higher than they should be. Her evidence is that they were using on average 9120kWh per annum and her research has told her that the average for her region is 8000kWh per annum.
Mr Roil’s evidence is that he lived in the property for 10 months prior to the tenancy and redecorated it during their occupation. He says they were getting it ready to sell, which is why they ensured it was HHS compliant, but then reconsidered and decided to let it.
Mr Roil explains that when they first had the property assessed it was not fully compliant, however they attended to the matters that required work and as a result the compliance certificate was issued. The final report which was provided to the Fullers did include the initial comments of failure, as well as the final compliance comments. The property is exempt from the requirements to install underfloor insulation and a ground moisture barrier as it is impractical to access the sub floor.
Mr Roos says he was never told by Ms Fuller that she had a concern over her power usage, and she only raised it in the application.
The HHS report was completed on 10 March 2022, therefore before the tenancy. The relevant section is as follows: Overview Comments: Smoke Alarms - Recommendation - Minimum of 1 smoke alarm required in the Lounge which is within 3m of each bedroom. Heating - Recommendation - Additional heating source required to meet minimum requirement of 5.1kW. Insulation - Recommendation - Additional insulation required to these areas to meet the Healthy Homes requirements. Moisture Ingress and Drainage - Recommendation - Enclosed subfloor. Installation of Ground Moisture Barrier required. Draught Stopping - Recommendation - Draught Stopping required in a few rooms. Compliant after remediation. Confirmation of compliance and works completed can be found attached to this report. THIS Healthy Homes NZ Ltd has not sighted the works completed and so queries regarding compliance of this section the Tenancy Services Healthy Homes regulations should be directed to the third party responsible for the remediation.
The issue with the report is that it is set out in a misleading way. For example, the smoke alarms section states firstly that there are no existing qualifying smoke alarms. Then is says additional qualifying smoke alarms required. And then, without further comment states that it does meet the HHS. There is no additional information as to how compliance was reached after the property initially failed.
Having assessed the documentation provided by the landlord I am satisfied that the home is HHS compliant and was from the commencement of the tenancy. I do understand Ms Fuller’s confusion however and it is unfortunate the situation was not fully explained to her and that the report was badly written.
Whilst I understand Ms Fuller’s submission that a property if exempt is not HHS compliant, if a property has a lawful exemption, then it is deemed HHS compliant. It is for this reason that the RTA requires tenancy agreements to discuss a property’s compliance or lack thereof, in order that tenants can make informed decisions before entering a tenancy.
This claim is dismissed. Mould
Ms Fuller says there was mould on the bathroom ceiling and on the back of the toilet when they viewed the property and when they moved in. She says Mr Roos advised her it would be cleaned before they moved in and said the owner had approved work to deal with the underlying issue.
Ms Fuller’s evidence however is that the mould was extensive and increased at a rate they could not keep up with. She said they would spray it each week but could never get rid of it completely. She says they used the extractor fan but were not convinced it worked sufficiently, and they always left the windows open. Because of her asthma this was a serious issue for them so they say they raised it regularly with Mr Roos but he just told them to bleach it.
Ms Fuller gave further evidence that they purchased a washing machine in October 2022 and within six months of it being in the bathroom it was covered in mould to such an extent that they left it at the property as it was no longer usable. She says Mr Roos constantly told them it would be dealt with, but it never was.
Ms Fuller’s evidence is that the mould took intensive work to deal with and was detrimental to their health. She says that her son got very sick with a respiratory infection in September 2022, and she had to take him to the emergency department. He also got a cold and ear infection in February and was sick at other times. Ms Fuller says she had to use her salbutamol inhalers more than normal whilst in the tenancy as it made her asthma flare.
Mr Roil says the fan was new shortly before the tenancy and they were advised it was the correct specifications to meet the HHS standards. He submits that the tenants had positioned their shelving slightly in front of the fan which would have impeded the air flow.
He further says he never had issues with mould when he lived there, and the current tenants have not raised any concerns. He is clear that if there had been an issue which he had been made aware of, he would have investigated it as this was their asset and they did not want it to be damaged by mould.
Mr Roos’s evidence is that there was no mould when the Fullers moved in but agrees she did raise it towards the end of the tenancy. He did not recall it being raised earlier. He says he offered to get a trade to look at it in July, but the tenancy ended before he could.
Mr Roos submits that the issue was because the tenants did not ventilate sufficiently and says he verbally raised the issue of ventilation with the Fullers on a number of occasions. He accepts the mould did gradually increase and was extensive at the end of the tenancy.
The only work undertaken in the bathroom since the tenancy is that a new bath has been installed as the old one was chipping, the walls have been painted and new vinyl has been installed. Mr Roil says they have found no evidence of a leak or any other issue that would make the bathroom inherently prone to mould.
The property inspection report on the tenancy agreement does not mention any issue with mould or lack of cleanliness. Ms Fuller says that this is because it was filled out in a rush, and they were pressured into signing the tenancy agreement because they were just days away from needing emergency housing and were desperate.
Mr Roos says he advised Ms Fuller that they could raise any issues with the inspection report during the first week of the tenancy, but she did not say anything about the mould.
Despite the inspection report noting all areas were clean, the oven was clearly not as after Ms Fuller drew Mr Roos’s attention to it, it was subsequently cleaned (this is discussed below). Ms Fuller raises this point to show that the inspection report cannot be relied on.
The February inspection notes that the bathroom ceiling has mould and needs cleaning. Further, the May inspection report notes that the tenants had reported that the mould kept returning and that as such they did not think the fan was function adequately. It specially states the following:
In Ms Fuller’s email on 22 May she states: There have now been three inspections since we moved in in September 2021. On all inspections the mould growing in the bathroom has been discussed and mentioned to you...there is substantial mould growing in the bathroom. The mould has been present since we moved in and has been discussed with you since our first inspection.” Mould discussion
Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without extensive mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem. Findings
There is no dispute that the mould was significant in July in the bathroom and had gradually developed over the tenancy.
There is evidence that the Fullers dried clothes in the living room, but I do not accept that this created the mould in the bathroom. There is no evidence that Mr Roos was concerned about their ventilation as no 14-day notices were issued.
I prefer Ms Fuller’s evidence that she advised Mr Roos of the mould problem from early on into the tenancy. This is because Mr Roos said in oral evidence that he wasn’t aware of the mould until June however there is documented evidence that he was certainly aware from February. Ms Fuller was much clearer on a variety of incidents that Mr Roos gave oral evidence he did not recall, and the inspection reports provided do not appear complete.
Further, despite the urgency conveyed in Ms Fuller’s 22 May email, Mr Roos did not respond to advise they would send trades in until 5 July.
Having assessed all of the evidence to the relevant evidential standard, I make the following findings: a. The Fullers did raise the issue of mould with Mr Roos early on in the tenancy. b. Mr Roos did agree to investigate the issue but did not. c. The mould increased over the tenancy and required regular cleaning. d. The mould was substantial enough to indicate some sort of issue that warranted investigation.
It is well settled that the landlord’s obligation under section 45 is to investigate and repair if required 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.
Regardless as to what the cause was, I find that Mr Roos did fail in his obligation to investigate this issue within a reasonable time frame. This is a breach of section 45. I discuss redress below. Oven
Ms Fuller’s evidence is that the oven was provided to them in an unclean way, and it took 3.5 weeks for it to be cleaned after she raised the issue with Mr Roos. She also says the grill could not be used as when it was, the oven caught fire. She says she told Mr Roos about this within the first month of the tenancy, but it was never investigated.
Mr Roos agrees the oven was not clean however was cleaned shortly into the tenancy, but says he was not aware of the grill issue until this application. The oven was less than a year old when this tenancy commenced and so he questions the veracity of this claim.
The invoice for the clean was issued on 15 September which is six days after the tenancy commenced. Accordingly, whilst the oven was provided in an unclean way, I am satisfied the landlord remedied the issue within a reasonable amount of time.
I do not find the concern with the grill established in evidence and accordingly it is dismissed. Smoke alarms
Ms Fuller says the alarm started beeping in May and they could not get it to stop, even with replacing the batteries. She says she raised the issue, but nothing was done which is a breach of the Regulations.
Mr Roos says they reimbursed Ms Fuller for replacing the batteries even though that was her responsibility. They say they were not advised subsequently that it was not functional, and it is working now.
I do not find it established in evidence that the Fullers advised Mr Roos subsequent to the battery replacement that the alarm was still dysfunctional. Accordingly, as the landlord was unaware, this claim must be dismissed. Trees
Ms Fuller says she raised the issue of the overgrown trees at the back of the property which shaded the garden in January, but they were not trimmed until June. She says that for this period they were unable to use their washing line, garden or even fit the car down the driveway.
The landlord accepts the delay on this matter and explains that there were issues with the gardener they were using at the time but are no longer due to this situation. They apologise for the delay but submit that the effect on the Fuller family was not as extensive as they claim. They consider the main issue to be with the personality of the gardener and they have dealt with that now.
The exterior section is not filled out in the May inspection report and there were no photos of the area provided by either party. There is therefore no pictorial evidence of the state of the trees before they were cut.
On the basis of the evidence provided, I am satisfied that there was a delay here which was unreasonable and accordingly a breach of section 45. Whilst there were difficulties with the gardener, the initial delay was with Mr Roos not actioning the matter with the owner. I discuss redress below. Sink
Ms Fuller’s evidence is that there was an issue with the kitchen sink drainage which took a month to be fixed. She says that during this time they could not/did not use the sink She says the pipes were replaced because it was draining directly onto the ground under the house. However, the repair left a hole under the sink which went into the sub floor of the house and as the underfloor had not been cleaned after this issue, the smell was overpowering. She says she showed Mr Roos but he did nothing, so she had to spray a hose under the house herself in an effort to mitigate the smell.
Mr Roos does not recall being told about this and does not even recall seeing the hole. He must have however as he did come to check the new plumbing and in doing so would have seen the hole, and most likely smelt the odour.
I am satisfied that the landlord did deal with the initial drainage problem within a reasonable time frame of it being raised. I do not find it established that the tenants could not use the sink as no one had told them not to until the plumber first diagnosed the issue. I find it more likely than not that Mr Roos did see the remaining hole after the repair and did notice the smell but considered the issues too minor to action.
Whilst the substantial issue with the piping was adequately addressed, I consider that Mr Roos did not deal with the remaining issue of the smell and hole of which he was made aware. This is a breach of section 45. I discuss redress below.

Did the landlord enter the property without notice?

Mr and Ms Fuller claim Mr Roos has entered the premises without consent or notice on the following occasions: a. September 2022 to inspect whether the oven clean had occurred without notice. b. November 2022 for an inspection providing less than 24 hours’ notice. c. February 2023 to inspect the damaged pipes without notice. d. February to undertake an inspection with less than 24 hours’ notice. e. March to inspect the repaired plumbing without notice. f. 27 April Mr Roos asked to reschedule that day’s inspection to the following day, thereby providing less than 24 hours notice. g. In May Mr Roos attended the property to inspect the grounds without notice. h. In June Mr Roos attended the property to inspect the grounds without notice.
Mr Roos denies ever attending the property without notice. He says that he always asked permission of the tenants to come over and always acquiesced if they did not want him to.
A landlord may not enter a tenanted premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. 1 Notably, the definition of premises in s48 does not include land or facilities. Therefore, entry onto the land, but not the interior of the premises, might not be a breach of s48. However, in some circumstances, entry onto the land could be a breach of quiet enjoyment under s38 RTA.
I make the following findings: a. There is no documentary evidence that Mr Roos advised he would attend the property to check the oven. I find it more likely than not that he did attend, and did not give notice to do so. I also find it likely that he was let in by the tenants to do so. 1 See section 48(1) and (2) RTA. b. November inspection - The texts demonstrate Mr Roos asking if an inspection could be done on short notice but agreeing to reschedule when it did not suit the Fullers. This was not a breach of section 48 as a landlord is entitled to ask and a tenant is entitled to refuse. c. I find it more likely than not that Mr Roos did attend to look at the plumbing concern in the same way as he did with regard to the oven. d. February inspections – again Mr Roos was entitled to ask, and he did receive permission. e. March – there is no documentary evidence of notice being given and Mr Roos did agree that he did undertake this plumbing inspection therefore I accept it established that Mr Roos did attend without giving notice. However, Ms Fuller was at home at the time and was entitled to refuse him entry, which she did not. f. April inspection – again Mr Roos did ask and was granted permission so there is no breach of section 48. Further, he did not enter the property when he did attend as the Fullers were not home. g. There is no evidence that Mr Roos gave notice of his intention to attend the property to inspect the gardens and there were most certainly issues with the gardener at this time. I therefore find it established that he did attend but was only in the garden.
Accordingly, I do not find it established that at any time Mr Roos came into the home without permission or prior notice. He most certainly did drop around at times without giving prior notice but was let in by the tenants. This is not best practice but is also not a breach of section 45.
I also do not find that Mr Roos breached section 38 with his requests for attendance. On each occasion, and they were not numerous, he was attending to complaints made by the tenants, and they were always entitled to refuse his access as they did on some occasions, which he respected. Again, this is not best practice but did not, in my assessment, amount to a breach of the tenants’ quiet enjoyment.
Further, as a matter of law, a tenant is not entitled to compensation for losses which, had they taken steps to mitigate, they may not have suffered. For example, if a landlord was continually making unreasonable requests to enter the home, I would expect a tenant to firstly ask them in writing to stop. Failing that they should serve a 14-day notice to remedy the breach on the landlord, and if that failed apply to the Tenancy Tribunal for compensation and a direction to cease breaching their quiet enjoyment.
This claim is dismissed.

Was the tenancy agreement complete?

Ms Fuller submits that the tenancy agreement was not complete for the following reasons: i. Pages 2 and 3 of the standard agreement were missing and these are the pages which include detail of the parties’ rights and obligations. ii. Insulation details were not included. iii. Insurance statement was not provided. iv. The HHS section in the agreement is not filled out and just has the words “see healthy homes report attached”.
Ms Fuller is correct as the insulation section is not completed however the HHS report that was provided did discuss the insulation requirements. There is also nothing noted in the agreement regarding the landlord’s insurance. It further appears that her version of the agreement was missing the noted pages however I note that this agreement had other pages headed “special conditions” which cover some of the matters which would otherwise be on the omitted pages.
Mr Roos did not have an explanation for the omissions.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. 2
A landlord must also include in the tenancy agreement information about compliance with the HHS 3 and the landlord’s insurance information. 4
On the information provided to the Fullers, I am satisfied of the following: a. They did have sufficient information regarding the HHS. This is because s13A(1CA) of the RTA only requires a landlord to advise when they comply with the HHS, which this HHS report did. There was supporting information available that Ms Fuller could have requested but was not required under the RTA to be provided without request by the landlord. b. The Fullers were not provided with information regarding the landlord’s insurance policy. This is a breach of section 13A and I discuss redress below. 2 See section 13A(1A) Residential Tenancies Act 1986 3 Section 13A(1CA) RTA 4 Section 13A(2) RTA c. The Fullers were provided with sufficient information to advise them of the status of the insulation in the property. d. The agreement provided was not the full template agreement as is available from Tenancy Services but was a hybrid of the template and the landlord’s own clauses. This was sufficient to meet the landlord’s obligations pursuant to section 13A of the RTA.

What monetary orders are appropriate?

The Fullers have made the following claims for compensation: i. A 10% discount in rent from 8 December 2022 until they moved out on 19 July on the basis the property was HHS incompliant. I decline the claim for the rent rebate as I have not found it established that the home was HHS incompliant. ii. Loss in income due to sickness and having to attend Tribunal hearings. iii. Costs associated in the Tribunal process. Pursuant to section 102 of the RTA the Tribunal has no power to award costs except in the specified situations, none of which apply here. I must therefore decline this claim. iv. Stress on the basis of Mr Roos’s actions. v. Compensation for high power bills of $1,500. As I have not found a breach of the insulation requirements or HHS, there is no basis for this claim, and it must be dismissed.
I have found that Shirling Real Estate did breach the RTA with respect to the mould, the trees, sink hole and smell, and the tenancy agreement. Based on these breaches I consider Ms Fuller’s claims for compensation. As her claim is a generalised claim for compensation and not reliant on specific financial losses, I consider the claim holistically.
I consider that the ongoing issue with the mould in the bathroom impacted the tenants considerably. They were frustrated at having to continually raise the issue with Mr Roos and lost trust in him. They had to undertake more cleaning than would otherwise be expected. The mould likely did impact Ms Fuller’s asthma at times when it was extensive.
I find it established that there was an inconvenience to the Fullers with the overgrown trees, and their sunlight was impacted. This is a lack of amenity.
I also find that for a short period there was an impact of the smell arising from the plumbing issue which would have been an inconvenience to the Fullers.
I do not find the failure to detail the landlord’s insurance policy impacted the tenants materially, but it did add to their general distrust of their landlord and is a breach of the RTA. General compensation
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having assessed all of the relevant factors, I make an award of $1,000 for the landlord’s breaches of section 45 with respect to the mould, sink and trees, and section 13A with regard to the agreement. I consider this amount reasonable in the circumstances and have taken into account the casual way Mr Roos ran this tenancy and the resulting frustration and upset it created for the Fullers. They were so frustrated that they left the tenancy early and in a considerable state of distress. Mr Roos was particularly negligent with respect to their concern over the mould which he should have investigated. I have also taken into account that he gave oral evidence he was not aware of the issue; a statement that his own inspection reports indicate was incorrect. I accept Mr Roil acted in a timely way and appropriately at all points he was involved. Stress
The Tribunal has the authority 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. Inevitably there is likely to be disruption when a tenancy approaches its end, even if both parties act entirely lawfully.
In Tenant v Singh (2022) NZTT 4315225 the Tribunal refers to the decision in Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 in setting out the appropriate bands where making awards for emotional harm damages. “ 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.”
I consider this situation one that fits into band A. The Fullers were certainly inconvenienced and upset by Mr Roos’s lack of action. But I must also take into account that they had options open to them which they did not avail of such as serving a 14-day notice. I consider an award of $500 reasonable in the circumstances. Filing fee
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.

Tenancy Tribunal case 4627172 — Rent arrears at 6A Randwick Crescent, Moera, Lower Hutt 5010

Tenancy Tribunal case 4627172 — Rent arrears at 6A Randwick Crescent, Moera, Lower Hutt 5010

Order

Reasons

Should the fixed term tenancy be reduced?

Did the landlord breach their maintenance obligations?

Did the landlord enter the property without notice?

Was the tenancy agreement complete?

What monetary orders are appropriate?

Property management

Order

Reasons

Should the fixed term tenancy be reduced?

Did the landlord breach their maintenance obligations?

Did the landlord enter the property without notice?

Was the tenancy agreement complete?

What monetary orders are appropriate?

Property management