What was Tenancy Tribunal case 4636109 about?

The tribunal order states: The tenant’s name and identifying details including the tenancy address

How much money was awarded in case 4636109?

Filing Fee: $3,883.71 awarded to landlord

What type of tenancy dispute was case 4636109?

The dispute type was not classified.

Where can I read the official tribunal order for case 4636109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10148457-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4636109 about?

The tribunal order states: The tenant’s name and identifying details including the tenancy address

How much money was awarded in case 4636109?

Filing Fee: $3,883.71 awarded to landlord

What type of tenancy dispute was case 4636109?

The dispute type was not classified.

Where can I read the official tribunal order for case 4636109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10148457-Tribunal_Order_Redacted.pdf.

[Street address] Road, Te Atatu South, Auckland 0610 Tenancy Tribunal Case 4636109 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4636109 — net $3,904.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for loss of amenity: 15% Filing fee	$3,883.71	Compensation for loss of amenity: 15% Filing fee
Net award	$3,904.15
Total payable by Tenant to Landlord	$3,904.15

Claims and awards in Tenancy Tribunal application 4636109 — net $3,904.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for loss of amenity: 15% Filing fee	$3,883.71	Compensation for loss of amenity: 15% Filing fee
Net award	$3,904.15
Total payable by Tenant to Landlord	$3,904.15

Order

The tenant’s name and identifying details including the tenancy address must not be published.
must immediately pay [the tenant] r $3,904.15, calculated as shown in the table below. DescriptionLandlord Compensation for loss of amenity: 15% Filing fee $3,883.71 $20.44 Net award to landlord$3,904.15

Reasons

I heard this matter over two days on 20 October 2023 and 6 March 2024.
[The tenant] attended the hearing in person and was assisted by Debbie Griffiths of VisionWest.
Counsel, Chantelle Braybrook, appeared for the landlords. The landlords attended in person.
Mike Yu, General Manager of Property Management of Shelter Realty, attended the second hearing.
[The tenant] claims the landlords failed to maintain the premises to a reasonable standard of repair, did not provide working smoke alarms, failed to include necessary Healthy Homes Standards information in the tenancy agreement, and interfered with her reasonable peace, comfort, or privacy to the aggravated level of harassment. For remedies she seeks compensation, a partial refund of rent paid or due, and exemplary damages.
The landlords deny the claims. Background
The tenancy is longstanding. It began on 28 July 2015 and is continuing. At the beginning of the tenancy, another person was recorded as a tenant on the tenancy agreement. However, the other tenant did not participate in the proceedings.
The house has three bedrooms, a bathroom, and a separate toilet. It was built in about 1960. It has weatherboards and a corrugated steel roof. The property has a large garage and a reasonably-sized section.
The weekly rent was originally $460.00 per week. In was later increased to $480.00 per week. On 27 March 2023, the landlords through Shelter Realty increased the rent $520.00 per week.
The tenant’s application states: Since 2018 I have repeatedly informed my landlord about urgent maintenance and repairs needed on the house to prevent cold, mould and dampness from getting worse. Harcourts took over as Property Managers in November 2022 and I informed them on their first inspection of all the problems with the property and how this was affecting my family – illness of children, mould in bedrooms and on bedding, coldness due to windows not closing, leaks, water accumulation. On all subsequent inspections I raised these issues the Property Manager and they were downplayed and no action taken (they took photos). In May 2023 I started working with Deidre Doyle at CARE Waitakere Trust and on 22 June 2023 sent a 14 day notice to Harcourt to remedy the issues.
The tenant says that her children have been affected by long term exposure to mould. 1
The tenant also alleges the landlords interfered with her reasonable privacy by regularly coming to the premises without notice. She alleges: 2 From last year when Harcourts took over management of the property, the owner Dave has been continuously coming to the property without giving notice and insists that I give him permission to come inside. Lily usually shows up shortly after Dave to do full inspections with no notice. The owners often argue between each other quite loudly and stay for almost an entire day. I have complained to Harcourts about this multiple times via email. Since I mentioned going to the tenancy tribunal, I have had to deal with up to 8 contractors turning up on the same day with no identification and no warning, this has caused safety risks for my 1 year old as the contractors often leave the gate and front door open, not to mention tools and rubbish being left around inside the house.
The issues for determination are: o Did the landlords fail to maintain the premises in a reasonable state of repair? o Did the landlords fail to meet their smoke alarm duties? o Did the landlords fail to include Healthy Homes Standards information in the tenancy agreement? o Did the landlords inter interfere with the tenant’s reasonable peace, comfort, or privacy, and if so, did the interference reach the aggravated level of harassment?

Did the landlords fail to maintain the premises in a reasonable state of repair?

Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 1 The tenant provided a letter from a GP dated 30 August 2023 in support of this. 2 Paragraph 3.1 of tenant’s submission headed “Breakdown for my request for exemplary damages”. 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 3
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 4 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 5 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 6 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
Although, the tenant’s claim alleges the landlords failed to maintain the premises over many years, the earliest contemporaneous evidence (such as photographs or written communications) of that date from 2022.
The then property manager communicated with the landlord on 13 and 16 March 2022 about a leak in the hot water cylinder. The problem was apparently repaired at that time. On 22 March 2022, the property manager reported to the landlords by text: 3 Residential Tenancies Act 1986 (RTA), s 45(1A) and Schedule 1A. 4 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 5 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 6 See n 4. I did a routine inspection today, tenants are looking after the place very well. No issues to be reported this time.
On 18 August 2022, the property manager texted the landlords: Tenants from your house reported 2 issues as below Bathroom shower pressure is too low, that needs to be looked at Front door is not working properly.
These issues were probably remedied within a reasonable time.
Shelter Realty conducted formal inspections of he premises on 22 February 2023 and 30 May 2023 but did not record any significant maintenance issues that needed to be addressed. The tenant says she raised maintenance issues verbally, but Shelter Realty says it recorded any valid concerns the tenant raised with it and passed these on to the landlords.
On 23 February 2023, the property manager reported to the landlords that the tenant had reported water leaking from the hot water cylinder again. By this time, the hot water cylinder cupboard was very mouldy. On 27 February 2023, the landlords informed the property manager that it was actually a roof leak, and they would be getting the repair done under warranty as the house had been reroofed only two years earlier. 7 The roof technician carried out a repair on 27 February 2023.
The landlords had a heat pump installed in March of 2023 even though they had no legal obligation to do so because the HHS did not apply to the tenancy.
On 20 April 2023, the property manager texted the landlords that the tenant had urgently reported: The hot water cylinder has been leaking for a very long time and instead of this issue getting fixed by a professional, a bucket was placed to hold the water. Please arrange for this issue to be resolved by a registered plumber or if you prefer I can sort this out for your if easier.
On 22 May 2023, the tenant emailed the landlords’ agent: I have been tenting this house for 8 years and I am sick of the mould everywhere no matter how much I clean. I am sick of the owners doing budget D.I.Y. repairs that do not fix the actual issues with the house. I am also over my kids getting sick because of the cold...half of the windows in this house cannot close properly, so it is impossible to keep the heat in or the draft out. ... 7 In about November 2020 at a cost of $13,200.00. I would appreciate it if Harcourts can assist me in finding a more suitable property which is warm, dry and healthy for my family.
On about 6 June 2023, the leak was traced to a faulty hot water cylinder venting pipe. The landlord’s plumbing contractor repaired and modified the pipe at a cost of $440.25. There was a bucket in the roof cavity above the hot water cylinder. The tenant claims that was the “repair” that was carried out. However, the landlords were adamant bucket was not placed as an alternative to repair. It was left behind after a leak that was repaired years earlier.
The tenant provided photographs she had taken in October 2022, and May, June, and July of 2023 that show: o Mould in lounge ceiling (25/10/22) o Possible “water damage” and mould in the dining room ceiling (25/10/22) o A bucket above the hot water cupboard. o Mr Wang on a ladder screwing two openable windows shut. o A window that is not shutting fully. o A window frame that paint is flaking from in “daughter’s bedroom”. o Mould on a ceiling. o Mould on “daughter’s bedroom” ceiling. o Mould on ceiling “below bucket in lounge”. o Section of wall and floor in son’s bedroom that appears damp and mouldy. o Hot water cupboard with a lot of mould. o Mould on ceiling of “bedroom 1”. o Mould on the dining room ceiling. o Mouldy cot mattress. o Water pooling under the lounge and/or deck. o A downpipe taped up with duct tape. o “Threadbare” lounge carpet.
On 22 June 2023, Deirdre Doyle, Financial Mentor, of Care Waitakere Trust emailed the landlord and Shelter Realty a 14-day notice to remedy defect in the premises on the tenant’s behalf: Under the Residential Tenancies Act [the tenant] is giving 14 days to remedy the following issues by 7 July 2023 Replace faulty smoke alarms in lounge and hallway (this is a serious health and safety issue) Repair the leaking roof and all other water tightness issue Repair or replace all windows which do not open or close properly (windows in the kitchen, dining, and bedrooms have been screwed shut). Repair or replace guttering and downpipes (which have been ducted taped) and unblock drains to stop garage flooding and water accumulating under the house Repair or replace carpet and lino which has holes in it Reseal the open fireplace (repairs completed were not successful) to stop drafts and water ingress Replace all the broken door, cupboard and wardrobe handles Replace kitchen leaking kitchen tap Repair or replace faulty extractor fan in bathroom Professionally have mould treated in all rooms of the house Attached are photos which are evidence of the poor condition of the house. In addition, in the Tenancy Agreement, Section 5 states the landlords have a responsibility to Provide and maintain the premises in a reasonable state of repair and comply with all building, health and safety standards that apply to the premises The condition of the property means [the tenant] is using more electricity to heat the house. [the tenant] believes her son's asthma has gotten worse and he has missed too many days from school due to this. Based on the above [the tenant] is requesting a partial refund of rent for the last 5 years (when [the tenant] initially raised problems with the house) and compensation for additional power used during the winter months. She also wants a reduction of rent until all the repairs are completed to a high standard. If we do not hear from you and you don't remedy the situation by 7 July 2023 we will be applying to the Tenancy Tribunal.
On 27 June 2023, the property manager emailed the tenant: We have agreed we will organise to the leak, gutters and downpipes seen to, which will help with the mould issues and repair the windows that need fixing. The carpet in the lounge is worn and there are holes in the kitchen lino, which we will be looking into along re sealing the fireplace and repairing the cupboard and most handles except the one you have broken. We will replace the leaking tap in the kitchen and fix the extractor fan in the bathroom. We will also look into the mould treatment once the leak issue and gutters have been repaired. We can also arrange to repair the holes in the walls at the same time, but this issue will be at your expense.
The tenant emailed the property manager on 30 June 2023: Today, the owner Lily and I verbally agreed that there appears to be no ground water issues under the 2 end bedrooms...we also agreed there is a lot of water under the deck and living room, and that water has no outlet to prevent if accumulating under the house...
The tenant also submitted a report from Habitat for Humanity labelled a “Healthy Homes Assessment Report” dated 30 August 2023 which records the property had problems with ground moisture, mould on the ceilings, mouldy carpet in a wardrobe, flooding under the house and other places, and leaking guttering.
The landlords acknowledge that the premises did suffer problems with damp and mould, but only from 2023, mainly because of the extreme rainfall in the January and February Auckland Anniversary deluge and Cyclone Gabrielle. 8 However, the house’s roof had been replaced in 2021, so any roof leaks were minor. The hot water cylinder leak was difficult to locate and repair but would only occur in very wet weather.
After the 22 June 2023 14-day notice, the landlords carried out work to the house including: o Installing a bathroom extractor fan at the cost of $625.43, per invoice dated 4 July 2023. o Replacing the kitchen tap at the cost of $472.93, per invoice dated 6 July 2023. o Repair of leak in laundry roof, installing a chimney cover, and cleaning the gutters at a cost of $1,587.00, invoice dated 18 July 2023. o Fixing and installing ceiling and underfloor insulation at a cost of $1,150.00, invoice dated 19 July 2023. o Installing a moisture barrier under the floor at a cost of $862.50, invoice dated 19 July 2023. o Downpipe repair and stormwater drain sump unblocking at a cost of $575.00, invoice dated 19 July 2023. 8 Page 5 of the landlords’ submissions. o Lock replacements, smoke alarm replacement, vinyl floor repairs, and window maintenance at a cost of $1,909.00, invoice dated 26 July 2023. o Gutter cleaning at the cost of $328.13, invoice dated 31 July 2023. o Stormwater and downpipe repairs which cost $1,772.83, invoice dated 18 August 2023. o Mould cleaning at the cost of $483.00, invoice dated 21 August 2023. o Floor covering replacement at a cost of $2,310.00, invoice dated 28 August 2023. o Replacing handles and fixing cabinet door at a cost of $115.00, invoice dated 26 October 2023. o Installing new smoke alarms at a cost of $172.50, invoice dated 2 November 2023.
Although Healthy Homes Standards did not apply to the tenancy, the landlords commissioned a Healthy Homes Standards report dated 29 September 2023, which found that the premises did not comply with the standards in respect to: o Damaged guttering. A downpipe was not in good working order. o Excessive draught in kitchen and lounge windows. The lounge windows required “replacement or repair”. (There were also holes in the walls and a broken window due to tenant damage) o Ventilation: the lounge did not have adequate window ventilation. There was no mechanical extractor fan vented to the outside in the bathroom and kitchen. o Smoke alarms: there were no smoke alarms installed within three metres of two of the bedrooms.
It appears the landlord addressed all of the maintenance issues by 2 November 2023. Conclusion
The house was largely sound and in fair condition but by the end of 2022, necessary maintenance work had been deferred too long and a number of problems had begun to impact the tenant and her family.
The carpets and vinyl flooring were old, damaged, and worn. Several windows did not work properly and let in excessive draught. The dining room ceiling paintwork showed signs of damp and mould and the paint was cracking. The hot water cylinder cupboard was mouldy due to persistent leaking. Part of the ceiling and underfloor insulation needed repair and replacement.
A downpipe was damaged, and a storm water drain was blocked. As a consequence, water was pooling under the deck and the lounge. The drainage issues are likely to have contributed to moisture in the home and to mould.
I am satisfied on the balance of probabilities that the premises was not maintained to a reasonable state of repair from the latter part of 2022. Remedies
The tenant and her family suffered significant loss of amenity due to maintenance issues. The home was damper and colder than it would otherwise have been. The tenant believes her children were unwell as a consequence. Although it has not been proven the children’s illnesses were contributed to by the house’s condition, it is understandable that she would have been distressed about that possibility. I accept that the tenant had to clean mould more frequently than she would other have had to.
As well as the negative impacts from maintenance issues themselves, the tenant and her family had to endure an invasion of contractors over several months.
The tenant’s first photographs from October 2022, show mould and paint damage on the ceiling. The last of the maintenance work, installing new smoke alarms, was completed on 2 November 2023. I consider that an appropriate period for compensation is for a period of one year from 3 November 2022 to 2 November 2023.
Having regard to the evidence discussed above, I calculate the tenant’s loss of amenity due to the premises not being in a reasonable state of repair at 15 percent of the weekly rent. The increase in rent is accounted for.
That amount allows for the tenant’s additional power use in the winter months due to disrepair. The tenant did not provide invoices to prove the cost of cleaning products. No order is made for cleaning products.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. 9
I am not satisfied on the balance of probabilities that the landlords intentionally failed to maintain the premises in a reasonable state of repair.
Determining whether a premises is in a “reasonable state of repair having regard to the age and character of the premises” is not always going to be a straightforward task. In this case, the premises was sound and superficially in a fair condition.
At least until the tenant complained in May 2023, the landlord’s property managers did not consider the premises were not adequately maintained. Mike Yu of Shelter Realty had viewed the premises and thought they were in adequate repair, and the property managers’ inspections did not find serious fault. It would have been obvious the premises was in only fair condition, but it may not have been clear from observation that the condition of the premises was less than fair in the respects the tenant identified from May 2023 onwards.
The property inspection reports contain photographs but no detailed comments of the condition of the various rooms in the house. The few notes made do not point to significant maintenance problems, although the notes do include reference to the fireplace’s cover falling off and probable intentional damage to the premises, including a broken window.
On balance, I accept Mike Yu’s evidence that he did not consider the premises fell below the statutory standard when he viewed them. Mr Yu gave his evidence in a calm and considered way. He was evasive or defensive when questioned about the condition of the premises. While, after carefully considering the evidence, I disagree with Mr Yu’s assessment, I can understand why he may have come to that view. I find that is a view he honestly held.
The property managers did not advise the landlords that the premises’ maintenance was below the requisite standard. The landlords relied on their assessment. It follows, the landlords did not intentionally fail to maintain the premises and exemplary damages are unavailable. 10

Did the landlords fail to meet their smoke alarm duties?

The tenant claimed the premises did not have working smoke alarms prior to 2022 and that in 2022 the landlord installed two smoke alarms that malfunctioned. 9 Residential Tenancies Act 1986 (RTA), s 109(3). 10 Exemplary damages against Shelter Realty are unavailable for the same reason.
The landlords deny they breached their obligations.
I do not find it proven the premises had no smoke alarms prior to 2022. I prefer the landlords’ evidence on this point.
The landlords’ HHS indicates the landlords were in breach of their smoke alarm duties. It is likely that the smoke alarms were situated a little more than three metres from two of the bedrooms.
There were smoke alarms, but they were incorrectly situated. New smoke alarms have now been installed in the correct position.
I am not satisfied that the breach which was due to incorrectly placing the smoke alarms was intentional and exemplary damages are declined.

Did the landlords fail to include HHS information in the tenancy agreement?

The tenancy agreement was signed in 2015.
The HHS and the landlords obligation to include HHS information in the tenancy agreement did not exist at the time.
The landlords therefore to not breach any duty to included HHS information.

Did the landlords harass the tenant?

The tenant complains that the landlords came to the premises without giving proper notice and spent long periods of time there against the tenant’s wishes. On 23 May 2023, the tenant emailed the property manager: Yesterday Dave [the landlord] text me and asking to pop in for “about 10 minutes” to check ceiling leak in roof... Dave arrived this morning at 9am as arranged and spent about 10 minutes looking in the roof and then proceeded to check the windows. After about 5 hours of DIY fixing he informed me that they couldn’t be fixed so he had screwed them all shut permanently (which to be honest is better than being cold)... It was during those 5 hours, Lily had done a surprise inspection of the entire property as per her usual routine whenever a repair is done and she complained about everything to me while trying to convince me to find another rental property to rent.
The owner went to the property again the next day to repair the door and the tenant had to forcefully tell him to leave because it was not a good time. Legal principles
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 11
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. 12
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person": MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Black’s Law Dictionary 13 defines “harassment” as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
The New Oxford Dictionary of English“ 14 defines “harass” as: subject to aggressive pressure or intimidation”. Discussion
The landlords going to the premises at short notice and remaining there for long periods was an interference with the tenants’ reasonable peace. However, it must be considered in light of the tenant’s request for maintenance work.
The landlords went to the premises with the main purpose of repairing the problems. The landlords’ first language is not English, and it is likely there were communication difficulties meaning the landlords did not fully appreciate the discomfort they were causing the tenant. The landlords did not insist on remaining when the tenant made it clear she did not want them there. Conclusion
The landlords’ appearances at the premises were mainly a response to the tenant’s report of maintenance issues. Nonetheless, in the way they responded, the landlords interfered with the tenants’ reasonable peace, comfort, and 11 RTA, s 38(2). 12 RTA, s 38(3) and Schedule 1A. 13 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 14 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). privacy by going to the premises at short notice and remaining for long periods and by looking around the premises without formal notice having been given.
While, the landlords’ actions were inappropriate, but there were without malice. I find the conduct does not amount to harassment under s 38.
I consider that the Tribunal’s order for 15 per cent rent reduction for loss of amenity which incorporates loss of amenity due to the presence of contractors needed to carry out the maintenance work adequately compensates the tenant for the landlords’ interference with her reasonable peace.
Therefore, no further order for compensation is made. Application fee
The landlords must reimburse the tenant for the filing fee because she has substantially succeeded in her claim. Non-publication
The tenant seeks non-publication of her name and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 15
The tenants substantially succeeded in proceedings. Publication is not in the public interest or justified by the tenant’s conduct or any other circumstances of the case.
It follows, a non-publication order is made.

Tenancy Tribunal case 4636109 — Tenancy dispute at [Street address] Road, Te Atatu South, Auckland 0610

Tenancy Tribunal case 4636109 — Tenancy dispute at [Street address] Road, Te Atatu South, Auckland 0610

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlords fail to maintain the premises in a reasonable state of repair?

Did the landlords fail to meet their smoke alarm duties?

Did the landlords fail to include HHS information in the tenancy agreement?

Did the landlords harass the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlords fail to maintain the premises in a reasonable state of repair?

Did the landlords fail to meet their smoke alarm duties?

Did the landlords fail to include HHS information in the tenancy agreement?

Did the landlords harass the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions