Published tribunal order
Tenancy Tribunal case 4642229 — Exemplary damages at 9 Halswell Street, Whanganui, Whanganui 4500
Decided 24 Oct 2023 · Published 24 Oct 2023 · Application 4642229
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- Inspire Property Management Limited as agent for Anchi Investments must pay [the tenant] the sum of $3,520.44 immediately as calculated below:
Reasons
- Both parties attended the hearing. The landlord was represented by Ms Roxanne Ditchfield.
- [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and 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.
- The tenant lived at the premises from 3 June 2021 until 28 May 2023. Her first tenancy agreement was with Integrity Property but when Inspire Property Management took over the management of the tenancy, a new agreement was signed, commencing on 5 July 2022. The rent was $600.00 per week. An inspection was undertaken on 8 July 2023.
- The tenant’s issues with the property preceded the management by Inspire, but she says that she drew the issues to Inspire’s attention from the start of the new tenancy. She also approached the local Community Law Centre who were going to try to get a rent reduction, get repairs done, or get her assistance in finding a better property but it seems they did not do so.
- The onus of proof is on the party seeking to establish a fact. The standard of proof is on the balance of probabilities. That means I must find something is more likely than not to have occurred.
- The absence of corroborative documentation from either party is not helpful but is not fatal to a claim. Washhouse door
- It was not disputed that the washhouse door did not close, meaning that neighbourhood cats used the washhouse and the tenant’s washing as a toilet. The landlord had put a “work order” in with their usual builder but it was not attended to before the termination of the tenancy.
- I find that once Inspire Property was aware that there was an issue with this door, they needed to ensure it was mended. I order them to pay compensation at the rate of $10.00 per week from 8 July 2022 when they undertook their first inspection until the end of the tenancy on 23 May 2023, which comes to $460.00. Heatpump
- The tenant says that the heatpump stopped working. This is not recorded in the inspection report of 8 July 2022. Ms Ditchfield had attended this inspection with another property manager, Yvette. Ms Ditchfield does not recall this being mentioned. The report mentions that the heatpump needs servicing and that there is a log burner. The tenant said that she had been told not to use the logburner.
- The tenant says that when Yvette did subsequent inspections she mentioned the heatpump again. When a new manager, Savannah undertook an inspection, the heatpump was finally fixed. This was towards the end of the tenancy.
- Ms Ditchfield said that there was no mention of the heatpump in any of their paperwork. She had brought the July 2022 inspection report to the hearing, but none of the other reports. She did not know if there was an issue with the log burner.
- The tenant said that she had raised some matters via text, but that she no longer has that phone.
- I am satisfied that the heat pump stopped working and that the tenant drew this to the attention of the property manager. I find it is unlikely that this occurred at the July inspection. It is likely that the tenant raised it with Yvette, but it is difficult to determine when that occurred, therefore it is difficult to decide what is an appropriate amount of compensation. The tenant said that she was using other heaters and it was very expensive. She was using an app that had to be topped up and spent $170 a week at one stage.
- I have decided to order $100.00 compensation for the lack of the heatpump. Draughts
- It was not disputed that there was a draught under the front door. Although a work order had been put through for this to be fixed, the tenant said it did not happen during her tenancy. She said that this and other draughts affected her ability to keep the home warm.
- The July inspection report records that the front door has a large gap underneath, and the back door needs to be reset as it did not sit properly.
- There was also a broken windowpane in an internal door between the kitchen and lounge, which the tenant said contributed to the draughts. This was recorded in the July report. The tenant said it had been there from the start of the tenancy. Ms Ditchfield said that it is not mentioned in the entry inspection report from Integrity.
- In addition, the tenant says the window in the bathroom would not shut. That is not recorded in the July inspection report.
- According to the agreement signed with Inspire, it was acknowledged that the property was not compliant the Healthy Homes Draught-Stopping Standard, and this would be rectified withing 90 days.
- No claim has been brought for a breach of the Healthy Homes Standards, but I have considered this issue as part of the tenant’s claim of failure to maintain under section 45.
- The tenant said that seals in the back door were attended to along with a latch on the kitchen window. Nothing was done to the front door. The landlord did nothing about the broken window in the internal door.
- I find that the tenant should be compensated a further $10.00 a week for the failure to fix the front door and the internal door. I am not satisfied that the issue with the bathroom window was brought to the landlord’s attention. I order $460.00 in compensation for the draughts. Other windows
- The sash windows in the bedrooms would not stay open. The tenant had to put books in it to keep the window open.
- I am not satisfied that this was drawn to Inspire’s attention and so I make no order in relation to these windows.
- Ms Ditchfield accept that at an inspection towards the end of the tenancy, it was pointed out to her that the seals on the windows in the bay windows in the kitchen were leaking. She is not sure if it was fixed.
- I am satisfied that at least for some part of the tenancy the landlord was aware of this issue. It is difficult to determine the amount of time the tenant put up with this. I have decided that $100 is appropriate compensation for this issue. Exemplary damages
- From the time Inspire Property Management took over management of this property, they were aware of some issues. Some maintenance items were attended to. However, the landlord needed to ensure that the draughts were attended to promptly.
- I find that the landlord’s failure to attend to the draughts caused by the front door and the internal glass door as well as the fault with the washhouse door amounts to an unlawful act, as does the failure to attend to the leaking kitchen window in a timely manner.
- 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. See section 109(3) Residential Tenancies Act 1986.
- In some circumstances, a delay caused by a tradesperson might mean that an order for compensation is appropriate, but no order for exemplary damages is warranted. However, for a period of 46 weeks, the landlord did not ensure the washhouse door was fixed or the draughts were attended to. The July inspection report recorded that the front door had a large gap underneath. It is not sufficient simply to say that a job was logged but nothing happened. The landlord knew that they were not compliant with the Healthy Homes Standards for all of that time. This landlord and others need to be reminded of their obligations to maintain their rental properties. There is a public interest in ordering exemplary damages on this occasion, and I make an order of $2,400.00 for the landlord’s failure to maintain the premises.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.