What was the outcome of Tenancy Tribunal case 4637629?

The tribunal order states: Manage My Rentals Limited must pay Cordelia Dave and Vikash Dave

How much money was awarded in case 4637629?

Compensation: Broken Cupboards: $100.00 awarded to tenant; Compensation: Gas Leak: $100.00 awarded to tenant; Compensation: Heating: $100.00 awarded to tenant; Compensation: Lack Of Oven: $550.00 awarded to tenant; Compensation: Lack Of Washing Line: $100.00 awarded to tenant; Compensation: Stress: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

Where can I read the official tribunal order for case 4637629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9439087-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4637629?

The tribunal order states: Manage My Rentals Limited must pay Cordelia Dave and Vikash Dave

How much money was awarded in case 4637629?

Compensation: Broken Cupboards: $100.00 awarded to tenant; Compensation: Gas Leak: $100.00 awarded to tenant; Compensation: Heating: $100.00 awarded to tenant; Compensation: Lack Of Oven: $550.00 awarded to tenant; Compensation: Lack Of Washing Line: $100.00 awarded to tenant; Compensation: Stress: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

Where can I read the official tribunal order for case 4637629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9439087-Tenancy_Tribunal_Order.pdf.

49 Arahiwi Grove, Tirohanga, Lower Hutt 5010 Tenancy Tribunal Case 4637629 — Leaks

Claims and awards in Tenancy Tribunal application 4637629 — net $1,470.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: lack of oven	$550.00	lack of oven
Compensation: heating	$100.00	heating
Compensation: lack of washing line	$100.00	lack of washing line
Compensation: broken cupboards	$100.00	broken cupboards
Compensation: gas leak	$100.00	gas leak
Compensation: stress	$500.00	stress
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,470.44
Total payable by Landlord to Tenant	$1,470.44

Claims and awards in Tenancy Tribunal application 4637629 — net $1,470.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: lack of oven	$550.00	lack of oven
Compensation: heating	$100.00	heating
Compensation: lack of washing line	$100.00	lack of washing line
Compensation: broken cupboards	$100.00	broken cupboards
Compensation: gas leak	$100.00	gas leak
Compensation: stress	$500.00	stress
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,470.44
Total payable by Landlord to Tenant	$1,470.44

Order

Manage My Rentals Limited must pay Cordelia Dave and Vikash Dave $1,470.44 immediately in accordance with the following table:
The landlord must carry out the following work to the premises, which must be completed by 31 October 2023: a. Investigate the mould growth in the ensuite, including with the use of a moisture meter. If practicable, resolve the issue.
As an alternative to compliance with Order 2, the landlord must pay the tenant $4,000 immediately.
If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $2,000. These costs may be set off against rent payable.
All other claims are dismissed.
No application for suppression has been made in this case and no suppression orders apply around publication of this decision.

Reasons

This is a fixed term tenancy that commenced in May 2023 and is contracted for a year. The tenants, the Daves who are new to the country, have had concerns about various aspects of the property from the commencement of the tenancy. Some issues have been resolved, others they seek the Tribunal to address.
The landlord was represented at the hearing by Mr Nieuwenhuys the property manager and Mr Wilkinson the manager. The Daves represented themselves.
In particular, the Daves seek compensation and/or work orders for the following alleged breaches of the Residential Tenancies Act 1986 (RTA): a. Pursuant to section 45(1)(b) of the RTA, the obligation to provide and maintain the premises in a reasonable state of repair. b. The landlord’s obligation under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
They also referenced misrepresentation issues in their submissions. At the hearing they were unclear what they were seeking in this respect and were to advise the Tribunal later that day if they wished to pursue a claim of misrepresentation or not. As they did not advise the Tribunal of their position, it is taken that they are not pursuing such a claim and as such the issue of misrepresentation has not been traversed in this decision.
By way of background, a mediation was held on 16 August and the parties agreed to a number of maintenance issues being resolved by way of a work order. The claim for compensation was not addressed at the mediation, nor was agreement reached as to the heating, lawns and damp issues with the bathroom; they were left for the Tribunal.
Also following the mediation, the Daves contacted the Tenancy Compliance and Investigations Team to assess the property however they declined given the matter was scheduled to come before the Tribunal. The Team is run by the Ministry of Business, Innovation and Employment and is a separate process to the Tribunal. In serious cases they prosecute alleged breaches of the RTA before the Tribunal. Accordingly, as their process is separate, complaints are entitled to be lodged with them at any time.
I discuss each of the Daves’ claims individually as follows. It is important to note that in the Tenancy Tribunal, applicants are generally required to establish their case to the civil standard of “balance of probabilities”. This means that they must prove that the situation is more likely than not to be as they argue or allege. I also advise the parties that whilst I may not have referred explicitly to all the evidence presented in this matter, including all that was submitted after the hearing, they can be assured that it has been considered in the forming of this decision.

Was the heating provided in the property adequate?

There are three stories to this property and three heaters the Daves are concerned about. Firstly, the heater in the lounge they say is inefficient and cannot meet the legally required standard. Their evidence is that when the tenancy started the heater seemed to function, however into the tenancy it would start heating and then automatically shut down. It has therefore never heated the home consistently they submit. They advised the landlord several weeks into the tenancy of this and then raised it in the 14-day Notice on 24 July (the notice).
The heater was examined by a trade in late August who said it needed a remote as it had set itself to turn off at a low temperature. The Daves received the remote towards the end of August therefore submit that they have not had efficient heating for all of winter. Despite this their gas bill has been high as the system is obviously struggling. They say they had the same level of gas bill as the previous tenants but have fewer occupants of the home.
The Daves provided video evidence of the letting agent who showed them the property referring to the “heat pumps” in the property, however there are none. They also say they were told the property was double glazed when only parts of it are. They therefore consider that they were given incorrect information with regards to the heating in the property before they signed the tenancy.
They also say the previous tenant measured the space and told them the heater only just meets the HHS requirements however that is based on its specifications when it was new which was in 2007. Therefore, they say it cannot be producing at the same output some 14 years later.
There was an extensive discussion regarding the previous tenants applying to the Tribunal on similar issues however I note that their application regarding draughts and heating was dismissed by the Tribunal in May 2023.
The Daves have had an Eco Homes Assessor from the Council look at the property and he said a heat pump would be more efficient and stated (in caps) that the un-flued gas heaters were hazardous, should not be used and should be disposed of. I note that the Eco Homes Assessor did not assess the property against the RTA and associated legislation, but against best practice.
Mr Nieuwenhuys cannot remember a concern about the heater being brought up orally or before the 14-day notice, however when he received that notice he instructed the trade and then followed his recommendations. He provided evidence that the heater was serviced in October 2022 and says to his knowledge he thought it was functioning appropriately.
A HHS report was obtained by the landlord which passed the property as HHS compliant on 5 May 2022 (the HHS report). The HHS report does assess the property as compliant with respect to heating but notes that given the heater is older, the recommendation was to install another heater as a top-up. That was however only a recommendation, rather than a requirement.
With respect to the use of the term ‘heat pump, Mr Wilkinson says this was a slip of the tongue by the letting agent however the Daves had been shown the heaters and it was noted in the tenancy agreement that the main heater was gas and not a heat pump. He is clear there was no intent to mislead the Daves as to what the property offered. I accept this submission particularly as the Daves were viewing the property at the time.
Secondly, there are two un-flued gas heaters which the Daves say are unlawful and they should have been warned about them. They rely on the Eco Homes assessor’s advice in this respect and are of the view that they made them ill.
Mr Wilkinson says he was not aware he had to advise them about the un-flued gas heaters as they are supplementary to what is legally required and he was not aware of an issue with them. Mr Nieuwenhuys instructed a technician to check them after the notice and he confirmed they are both functioning adequately.
The Daves say that when they raised their issues of concern with their property manager they were treated as pests. They say they were taken advantage of when signing up the property as they are foreign nationals and as such not familiar with New Zealand laws, terminology and housing requirements. The law & discussion
Section 45 of the RTA details a landlord’s responsibilities upon notification by a tenant of maintenance issues. It also requires landlords to comply with the HHS within 120 days of the tenancy commencing.
The heater in the lounge is the one that is required to be compliant with the HHS heating standard as this is the largest living area. The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The HHS report indicates that the heater is compliant with the HHS, and the evidence has not established otherwise. Therefore, I am satisfied that the landlord has complied with the HHS heating standard.
The evidence has however established that the heater was malfunctioning which is a maintenance issue. It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The concern was most certainly reported in the notice, and the tenants allege it was also notified prior. Mr Nieuwenhuys does not recall it being raised earlier and it was not in the 19 June email. On the balance of probabilities, I find it more likely than not that it was first raised in the notice. I note that it was point 18 of 24 on the list in the notice. Accordingly, the landlord was aware there was an issue from 24 July, and it was addressed within a month.
I do not find the time frame of a month unreasonable. Accordingly, as it has not been established in evidence that the landlord has breached s45 with respect to the lounge heater, I dismiss the claim.
With respect to the other two heaters, these were provided as surplus to legal requirements, presumably on the basis that the house is large. They have been investigated by a trade on the landlord’s instructions following the notice. It has not been established that they are malfunctioning, nor has it been proven that they made the tenants ill. I note that the requirement for gas heaters to be flued, only relates to the primary heating source in accordance with the HHS. Therefore, neither the HHS nor the RTA require surplus gas heaters to be flued. They are however required to be in reasonable condition. Accordingly, this claim is also dismissed.

Was the premise provided in accordance with the RTA?

The Daves say the lawns were overgrown when they viewed the property; an issue they raised at the time. The letting agent told them it would be resolved by when they moved in, however it was not as they say it needed weeding and mowing at that stage.
The Daves do not have any photos of the gardens when they moved in and challenge the ones Mr Nieuwenhuys says he took just prior to them moving in because they do not show the cobwebs that were present. The landlords’ photos do show the gardens in a reasonably tidy state (just) and the ingoing inspection report states the gardens are in good condition.
Mr Wilkinson says they did not raise the issue of the gardens until the notice which was well into the tenancy. The Daves disagree and say they raised it orally, Mr Nieuwenhuys says they may well have.
At this point I reiterate that the burden of proving the claim lies with the applicant, the Daves. I consider that it has not been established in evidence that the lawns were not reasonably tidy at the commencement of the evidence. I note the tenants only attended to them towards the end of August, many months since the commencement of the tenancy so they would be undoubtably long by that stage. They openly say they did not go outside for the first months of the tenancy due to the spider infestation. Accordingly, this claim has not been substantiated in evidence and must be dismissed.
I do note that the Daves are not required to return the premise upon completion of the tenancy in any cleaner or tidier state than it is represented in the ingoing report.
As an aside, I note that the Daves were asked to initial the ingoing inspection report prior to seeing the premise when moving in. Mr Wilkinson tells me this is standard practice. I do not accept that it is a reasonable practice for a landlord to require a tenant to sign a document attesting to the state of a premise they have not yet had the benefit of viewing.

Is there an issue in the ensuite?

The Daves say the mould that arises in the ensuite is extreme, probably because the ventilation fan is insufficient. They say it grows daily and they provided photos of two days’ mould growth. Mr Dave’s evidence is that as he suffers from obsessive compulsive disorder (OCD) he cleans the bathroom daily however left it for two days to show the landlord at the inspection and these are the photos provided which clearly demonstrate the mould. The mould in the photos is on the ceiling, scotia, and silicone. He says he has to clean the ceiling every couple of days to prevent the mould growth and the rest of the room daily.
The Daves say they leave the extractor fan on for a period after every shower as the smoke detector outside the doorway goes off if they don’t because of the level of steam when they open the door. They also leave the bathroom window open continuously in an effort to ventilate the room and use the heater with each shower. Despite this, mould grows daily. They first officially raised this issue in the 14-day notice.
The Daves question the veracity of the HHS report which assessed the fan as complaint given other items noted on it were incorrect, for example the oven which could not be used.
Mr Nieuwenhuys says he responded to the notice by attending to check the fan. He tested it by holding a piece of toilet paper up to it. He said the suction was such that if he had let it go it would have been sucked into it. Accordingly, he did not identify an issue with the fan. He says the house is relatively new having been built in 2007 and is built to high specifications therefore he does not accept there is an issue in the bathroom.
There was a discussion at the hearing regarding a previous flooding of the main bathroom during the last tenancy and whether this contributed to the damp in the ensuite. I am satisfied that the evidence does not establish that it created an inherent damp problem in the ensuite for the following reasons: a. There is a drain in the floor of that bathroom; b. the skirting is tiled; c. it occurred some seven months prior to this tenancy; d. the mould was not present prior to this tenancy; and e. the flooding was relatively minimal. Discussion
I do not find the HHS breached here as the fan has been tested and approved by the HHS assessor and there is no evidence that this assessment was deficient. It is therefore a maintenance issue with respect to the mould.
Regulation 15 of the Housing Improvement Regulations 1947 (the Regulations) states that every house shall before from dampness. The HHS were also enacted in an effort to reduce the damp in New Zealand tenanted properties.
After being advised, the landlord has investigated with Mr Nieuwenhuys’ ‘toilet paper test’. This in their mind resolved the issue. Whilst this was an adequate step to take, I consider that further investigation is needed given the level of mould growth described by the tenants is significant. There has been no moisture testing of the walls or any other investigation to rule out any other causes despite Ms Dave saying the mould primarily accrues on one area of the bathroom. It is not in the interests of the tenants living with damp conditions or the landlord whose property may be deteriorating, to leave such a concern un- examined.
Accordingly, I am satisfied that this level of mould (occurring on a daily basis) is a maintenance issue that has not yet been resolved which is a breach of s45 of the RTA. Where the Tribunal finds that a landlord has failed to comply with s45, it may make an order for the landlord to carry out the work 1 . 1 See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order 2 . 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.
Mr Wilkinson does not consent to a work order as his view is the Daves are using the wrong cleaning product.
I therefore direct a work order that the landlord adequately investigate the level of the mould growth in the ensuite in line with my directions detailed above in this order. When the issue is identified, it must be remedied within a reasonable amount of time if practicable, and if not, steps to mitigate it should be taken.

What compensation should be awarded?

As I have found that the landlord has breached s45 of the RTA with respect to the ensuite, I turn to the Daves’ application for compensation which also covers the other issues of maintenance that were agreed to be progressed by way of work orders at mediation. They claim compensation for the following: i. High gas bills. ii. Lack of heating. iii. Emotional trauma for the lack of respect shown to their family. The stress has caused issues within their marriage and marred their experience in New Zealand thus far. iv. The loss of time in taking advice and pursuing this claim. v. For not having an oven to bake with (they could use the stove top) for 11 weeks. vi. Not having a washing line until the hearing date. vii. Having a gas leak that took eight weeks to be repaired despite the danger to their health. When they first advised about it they were told that there would be a gas smell given the gas heaters and stove in the home. viii. They also say that when it all got too much and they wanted to vacate, they were not told about the ability to assign the tenancy and were just told that the owner had been kind to give them a rent reduction due to Mr Dave not working. 2 See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
They say that at the mediation work orders were consented to however the owner tried to renege on them subsequently until the mediator told them they had to, given they had already agreed.
I discuss at each claim separately. Oven
There is agreement that the oven was not fully functioning at the commencement of the tenancy. Mr Nieuwenhuys says he saw it was not sealed on the 15 th of May and so contacted the contractor on the 18 th . There were delay issues with the contractor and then the parts, and then they were told on 27 July they could not source the parts and had to replace the whole oven which they duly did.
The Daves consider the issue should have been remedied prior to the tenancy commencing. They say it could clearly be seen that the door could not close and the numbers on the dials were rubbed off. The photos substantiate those claims.
No compensation was offered, or it appears even considered despite this lack of amenity. Mr Wilkinson suggests that the tenants did delay the work at one stage asking him to hold off until they had spoken with the property manager. He does agree to compensation but leaves the amount with the Tribunal.
The Daves did not have a functioning oven for 11 weeks of their tenancy. They could therefore not bake for this period although they could use the stove top. Regulation 7 of the Regulations states that every kitchen shall provide adequate means of cooking food by way of baking. The Daves were entitled to a functioning oven and did not get one; they therefore have suffered a lack of amenity.
I consider compensation of $550 justified in these circumstances which equates to a rent reduction of $50 per week for this breach 3 . The landlord was under an obligation to ensure that the oven was working at the commencement of the tenancy; they did not. Heating
As discussed above the Daves were without a fully functioning heater for a month of winter that the landlord was aware of. It is not reasonable to award compensation for an issue the landlord has not been made aware of. This is a lack of amenity and I award $100 compensation for it. Washing line
Concerns with the washing machine were raised in the notice and Mr Nieuwenhuys thought it could just be cleaned up. The trade however said it 3 The rent was $1000 per week could not. He did some repairs and a new one was ordered which was to be installed around the time of the hearing.
The issues with the washing line could be seen since the commencement of the tenancy. They were not addressed by the landlord prior to the tenancy or when the tenants raised it during the tenancy. It was not until the mediation when it was agreed that work would be done. The tenants therefore were without a functioning washing line for approximately the first 5 months of the tenancy. Mr Wilkinson agrees to an order of compensation but leaves the amount to the Tribunal.
Having assessed the circumstances, I consider an award of $100 justified in the circumstances which equates approximately to a rent reduction of $5 per week. Cupboards
There were issues with the racks in the cupboards of the bedrooms which meant the Daves could not use them fully. They were also not addressed until after the mediation. There was a lack of amenity here but not a substantial one given they could still be used. The landlord has however failed to deal with this issue of maintenance as raised by the tenants within a reasonable time.
Accordingly, I find that an award of $100 for this breach is reasonable. Gas leak
The Daves say there was a gas smell which they complained about several days into the tenancy but did not get resolved until late August when it was assessed that the oven gas supply was leaking. They say the previous tenant had the same issue with a gas smell but did not raise it and actually left the tenancy due to issues with the landlord.
Mr Nieuwenhuys did come to the house after he was told, but says he could not smell anything. He therefore told the tenants that they would send a gas technician but if no issue was found, they would be charged the call out fee. As a result, the Daves left the issue.
Subsequently however a leak was detected when the gas technician came to investigate the gas heaters after the notice. It was remedied in late August.
I find that the landlord was willing to send a technician to investigate but the request was not progressed by the tenants. Accordingly, I do not find a breach of section 45 and the claim is dismissed. Gas bills
The Daves say they have suffered high gas bills and should be compensated for that. They cannot substantiate their claim however as there is no real point of reference. However, whilst nothing was established as wrong with the gas heaters, there was a gas leak from the oven. It was small however would have resulted in a slightly higher gas bill than could be expected.
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.
I have no evidence as to how much gas would have leaked between May and August however looking at the situation holistically, find that $100 compensation is reasonable in the circumstances given the Daves have paid for more gas than what they used as a result of a leak. Stress
Section 77(2)(n) RTA empowers the Tribunal to make an award for general damages where a tenant or landlord breaches the provisions of the RTA. The damages are for “pain and suffering” or “emotional distress”. When considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest. Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Virtually any breach brings with it some degree of disappointment and upset, and almost every action could give rise to a claim for intangible loss. It is very difficult to put a price on an intangible, when it is not open to mathematical calculation, and requires some degree of subjective assessment and impression.
There were a number of maintenance issues live in the early days of this tenancy. Some should have been noticed prior to the tenancy starting, others should have been actioned earlier upon notification. Upon receipt of the 14-day notice the landlord has generally responded adequately, however it took that step for them to do so on some issues.
I am satisfied that the Daves have suffered more than the ‘expected’ level of stress due to matters in this tenancy. I hear how difficult this has been for them, particularly as new immigrants to New Zealand. I find that their distress is at the lower end of the scale and primarily relates to inconvenience and frustration. 4 Accordingly, I award $500 compensation. Failure to advise 4 See Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775
I do not consider the landlord’s failure to advise the tenants of their ability to assign the tenancy in line with s43B of the RTA or clause 7 of their tenancy agreement justifies an award of compensation. This information was available in the tenancy agreement and on the Tenancy Services website. Whilst it would have been best practice for Mr Nieuwenhuys to draw the Daves’ attention to the entitlement, he was not legally obliged to. Accordingly, this claim is dismissed. Costs
Pursuant to s102 of the RTA the Tribunal has no power to award costs except in the specified situations, none of which apply here. Accordingly, I make no award for the time incurred by the Daves in preparing and pursuing this claim.
As they were successful to an extent in their claims however, I do award reimbursement of the filing fee.

Tenancy Tribunal case 4637629 — Leaks at 49 Arahiwi Grove, Tirohanga, Lower Hutt 5010

At a glance

Tenancy Tribunal case 4637629 — Leaks at 49 Arahiwi Grove, Tirohanga, Lower Hutt 5010

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the heating provided in the property adequate?

Was the premise provided in accordance with the RTA?

Is there an issue in the ensuite?

What compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the heating provided in the property adequate?

Was the premise provided in accordance with the RTA?

Is there an issue in the ensuite?

What compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions