Published tribunal order
Tenancy Tribunal case 4629493 — Property damage at 50 Cosgrave Road, Papakura, Papakura 2110
Decided 12 Oct 2023 · Published 12 Oct 2023 · Application 4629493
- Property damage
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant’s name and identifying details.
- A&D Mead Ltd must pay [The tenant/s] $1,600.44 immediately, calculated as shown in table below:
- The landlord must carry out the following work to the premises, which must be completed by these dates: a. Rusted carport gutter to be replaced on or before 1 Nov 2023; and b. Heatpump to be installed on or before 1 April 2024
- If the landlord fails to comply with order 3 above, the tenant may request for a further hearing before me to address the quantum of compensation and repair costs payable to undertake the work and charge the landlord accordingly.
Reasons
- Both parties attended the hearing. Adam Mead appeared for the landlord. Work orders sought for outstanding maintenance
- The tenant claims that the landlord did not repair the fireplace and the carport guttering. The tenant wants the problem fixed.
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
- The parties agree at the hearing for the heatpump to be installed before the winter months of 2024 in lieu of the landlord replacing the broken fire bricks and fireplace window/door handle, and repairs to the gasket/seal to the fireplace window.
- The parties also agree at the hearing for the rusted and faulty carport gutter to be replaced in 3 weeks’ time.
Has the landlord failed to comply with their obligations under section 45 RTA?
- [The tenant/s] claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (‘RTA’).
- Under section 45 RTA, a landlord must: a) provide and maintain the premises in a reasonable state of repair; and b) comply with any relevant enactment in relation to buildings, health and safety
- 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.
- Applications for exemplary damages arising from commission of unlawful acts under section 45 RTA cannot be made later than 12 months after the date of commission of the unlawful acts in question. See section 109(2)(b) RTA
- The tenant’s claims for exemplary damages related to historical commissions of unlawful acts to do with the landlord’s failure to maintain the premises in a reasonable state of repair after being notified of their need for repair. The landlord’s failure to repair complained by the tenant occurred more than 12 months prior to the tenant’s claim being lodged at the Tribunal on 18 July 2023.
- The Tribunal is therefore without jurisdiction pursuant to section 109(2)(b) RTA to make an award of exemplary damages against the landlord.
- The Tribunal however has jurisdiction to address the continuing breaches by the landlord in respect of the unrepaired fireplace and rusted carport gutter.
- Repair and maintenance issues on the fireplace were notified by the tenant on 22 May 2020. The landlord has been advised of the need to replace the broken fire bricks and the fireplace window/door handle, and to repair the gasket/seal to the fireplace window. The landlord failed to attend to those repairs.
- While the fireplace is still in working order, the lack of repairs by the landlord mean that the fireplace is not operating to its full and intended effect. A tenant is entitled to have maintenance issues remediated within a reasonable time after raising them. I consider that the tenant is entitled to general damages for loss of amenities suffered for the 4 winter months of each of the 4 years in question.
- I consider an award of general damages of $20.00 a week appropriate in the circumstances, for 16 weeks for each of those years, ie., 2020, 2021, 2022 and 2023. This amounts to $1,280.00, until the heatpump is scheduled to be installed in 2024.
- The landlord has been advised of the rusted and broken carport guttering on 4 December 2021. The landlord failed to attend to the gutter repair/replacement to date.
- I consider an award of compensation of $300.00 appropriate in the circumstances.
- As the tenant is partly successful on their claims, I order the landlord to reimburse of the filing fee to the tenant.