What was Tenancy Tribunal case 4637630 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4637630?

Property Damage: $4,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4637630?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4637630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9554493-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4637630 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4637630?

Property Damage: $4,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4637630?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4637630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9554493-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4637630 — Healthy homes

Claims and awards in Tenancy Tribunal application 4637630 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breaches of HHS	$4,000.00	Breaches of HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Claims and awards in Tenancy Tribunal application 4637630 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breaches of HHS	$4,000.00	Breaches of HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Active Real Estate Limited must pay [The tenant/s] $4,020.44 immediately, calculated as shown in table below:
The claims for compensation for the rangehood, the shower and the roof were withdrawn at the hearing.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The parties signed a fixed term tenancy agreement for 9 months in 2022. The tenancy agreement states that the landlord is exempt from complying with the Healthy Homes Standards because the house is to be demolished. The original fixed term came to an end and the parties agreed it would roll over into a periodic tenancy. A variation of tenancy was signed because the rent was reduced. From November to June 2023 the relationship between the parties deteriorated because of maintenance and compliance issues. The tenant gave notice and left in July 2023. The tenant has applied for exemplary damages because he believes the landlord should have complied with the Healthy Homes Standards and that there was a breach of the duty to carry out repairs and maintenance. The questions I have to decide are: • Did this house have to comply with the Heathy Homes Standards? • Should exemplary damages be ordered? • Did the landlord carry out repairs and maintenance within a reasonable time? • Was there a breach of quiet enjoyment?

Did this house have to comply with the Heathy Homes Standards?

Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The tenancy agreement states there is a general exemption to compliance because the landlord intends to demolish or substantially rebuild the rental property and has applied for or been granted the relevant resource or building consent. It states that this exemption will last for up to 12 months from the healthy homes compliance date. The compliance date entered into the tenancy agreement – entered because the landlord cannot produce a document without entering a date – is 23/02/2022, which is the first day of the tenancy. The exemption was discussed with the tenant before the tenancy started.
Regulation 31 HHS states that tenancy premises have an exemption if the premises are due to be demolished or substantially rebuilt. The law relevant to this application states that a landlord need not comply if, before the commencement of the tenancy, the landlord (or owner in this case) applied for consent to demolish or substantially rebuild the premises, with that work to begin within the “grace period” and, as at the commencement of the tenancy the application is still pending. The grace period is defined as the period of 12 months beginning on the date of commencement of the tenancy. The exemption ceases to apply if the application for a consent is refused, or the grace period expires.
The landlord submitted the owner had applied for a consent when the tenancy started. It has provided me with copies of emails which show there have been communications with the Council about a consent from October 2022. I have been provided with copies of the redevelopment plans for the tenancy premises and the date on these is December 2021. While the landlord has not proved the owner had applied for the relevant building and resource consents before the tenancy commenced, it seems most likely to me from the information I have that this process had started, and the application is pending.
The tenant submitted that the tenancy agreement was confusing because it said the HHS compliance date was 23 February 2022, and he knew there was a 12 months exemption because of the redevelopment plans. Accordingly, he thought the landlord would take steps to make the house HHS compliant by 23 February 2023. In particular, he wanted extractor fans in the two bathrooms to ease the problems he was having keeping mould under control.
While I am not persuaded by this submission, I do agree the exemption ended after 12 months. This is because the 12 month grace period ended on 21 February 2023, 52 weeks after the commencement of the tenancy. Regulation 31(2) HHS sets out that: This exemption ceases to apply if, during the term of the tenancy, any of the following occurs: (a) the consent lapses or is terminated: (b) the grace period expires: (c) ...the application for consent is refused: ...
I note that the wording of the exemption in the tenancy agreement is not accurate, because it states the exemption “will last for 12 months from the healthy homes compliance date”, rather than there being a grace period of “12 months beginning on the date of commencement of the tenancy” which is the wording in the HHS.
The grace period expired during this tenancy because the tenancy lasted for just over 71 weeks, which is 19 weeks longer that the grace period. I find the exemption did not apply to the tenancy after 21 February 2023. The landlord provided me with a HHS report carried out by an independent company on 13 June 2023. This assessment shows the house needs these to comply: • Additional ceiling insulation • The rangehood to be fixed • Extractor fans in the two bathrooms • Draught stopping on the back door and on a number of windows • A moisture barrier for the subfloor.

Should exemplary damages be ordered?

Breaching the obligation to comply with the HHS is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A). I find the landlord committed an unlawful act.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Landlords are required to know the law. While some of the HHS information is confusing, the exemption ceasing because the 12 month grace period expired is reasonably straight forward. Landlords who choose to use an exemption must understand the law. I find the landlord acted intentionally. The effect on the tenant was unnecessary stress when he requested extractor fans and a constant battle against mould. At the hearing the landlord insisted that there was mould because the tenant did not ventilate, and because he had clothes drying in the house. It seems more likely to me the house grew mould because there was insufficient insulation, no extractor fans, and no ground moisture barrier. It is in tenants’ interests that landlords provide houses which are HHS compliant, and there is public interest in a penalty if the RTA is breached.
I allow exemplary damages in the amount of $4000. This at the upper end of the scale because I have allowed $1000 for the breach of each standard.

Did the landlord carry out repairs and maintenance within a reasonable time?

The tenant claims that the landlord has breached their obligations under section 45 of the RTA, which provides that a landlord must provide and maintain the premises in a reasonable state of repair. The tenant asked for repairs to a leaking roof, and the two showers. He was so frustrated with the delays in fixing the roof leak that he served a 14 day notice on the landlord. He withdrew his claim for compensation for these breaches but asked that exemplary damages be considered.
The landlord sent a plumber to look at the shower downstairs and the bath upstairs. According to the landlord both were fine. There is a low pressure system at the house and the upstairs arrangement was a hand held shower attachment and the tenant got permission to install a shower curtain. I find the tenant has not proved there was a breach here.
As to the roof leak, the tenant said he first notified the landlord that water was dripping into the room he used as a bedroom on 10 April 2023. He followed up and was asked to put a bucket under the drip while the landlord arranged repairs. I can see the landlord requested builders to attend and repair on 1 May, 29 May, 1 June, and 21 June, without success. The roof was eventually repaired on 23 June 2023. The landlord submitted it had real problems getting the repair done, because of schedules and covid. I find the roof repair did take a long time, but it seems most likely to me the landlord was trying to arrange repairs. I often allow a small amount of compensation in situations like this, where there has been a loss of amenity, but the claim for compensation was withdrawn at the hearing. I do not find the delay to be so serious that I should order exemplary damages. This claim is dismissed.

Was there a breach of quiet enjoyment?

The tenant claims the landlord harassed them. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 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. See section 38(2) and (3) and Schedule 1A RTA.
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 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.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
The tenant submitted that the landlord harassed him after he gave the 14 day notice asking for the roof to be repaired and for a home that complied with the HHS. After no inspections since the tenancy started the landlord arranged an inspection. Subsequently the landlord served a notice asking the tenant to clean the bathrooms and to wipe mould off all the windows and window sills. The tenant said he was incensed that they asked him to clean mould when he had been battling with damp and mould throughout the tenancy. Soon after, he gave notice to end the tenancy.
This is the tenant’s claim to prove. I have been provided with the notices given before and after the inspection. I have some of the texts sent during the tenancy. I note the parties managed to reach an agreement about the bond, and the landlord waived some rent arrears at the end of the tenancy. I do not find the tenant has proved there was a pattern of behaviour directed at him, or that there was one single act so serious that it was harassment. This claim is dismissed. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because the tenant is the most successful party.

Tenancy Tribunal case 4637630 — Healthy homes

At a glance

Tenancy Tribunal case 4637630 — Healthy homes

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did this house have to comply with the Heathy Homes Standards?

Should exemplary damages be ordered?

Did the landlord carry out repairs and maintenance within a reasonable time?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did this house have to comply with the Heathy Homes Standards?

Should exemplary damages be ordered?

Did the landlord carry out repairs and maintenance within a reasonable time?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions