What was Tenancy Tribunal case 4649170 about?

The tribunal order states: Leo Jew and Rachel Snelling must pay [The tenant/s] $2,430.44 immediately.

How much money was awarded in case 4649170?

Property Damage: $2,160.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4649170?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4649170?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261227-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4649170 about?

The tribunal order states: Leo Jew and Rachel Snelling must pay [The tenant/s] $2,430.44 immediately.

How much money was awarded in case 4649170?

Property Damage: $2,160.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4649170?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4649170?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261227-Tribunal_Order_Redacted.pdf.

2 Stafford Street, Waihi, Waihi 3016 Tenancy Tribunal Case 4649170 — Healthy homes

Claims and awards in Tenancy Tribunal application 4649170 — net $2,430.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Healthy Homes not complied with	$2,160.00	Healthy Homes not complied with
Exemplary damages: Healthy Homes reports not provided to tenant on request	$250.00	Healthy Homes reports not provided to tenant on request
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,430.44
Total payable by Landlord to Tenant	$2,430.44

Claims and awards in Tenancy Tribunal application 4649170 — net $2,430.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Healthy Homes not complied with	$2,160.00	Healthy Homes not complied with
Exemplary damages: Healthy Homes reports not provided to tenant on request	$250.00	Healthy Homes reports not provided to tenant on request
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,430.44
Total payable by Landlord to Tenant	$2,430.44

Order

Leo Jew and Rachel Snelling must pay [The tenant/s] $2,430.44 immediately.
The remainder of the tenant’s claims are dismissed.

Reasons

Hearings for this claim were held on two separate dates. Both parties attended the first hearing in person. The tenant (applicant) attended the second hearing by telephone and the landlord, Mr Jew and Ms Snelling, attended in-person.
The tenant claims: a) Compensation ($7,000.00) as: i.the premises did not comply with the Healthy Homes Standards (HHS), ii.the termination of the tenancy was retaliatory; b) Exemplary damages for: i.non-compliance of the HHS, ii.not being provided with HHs reports requested, iii.the retaliatory notice to terminate the tenancy.
The tenant withdrew his claim at the first hearing that no HHS was received with the tenancy agreement.
The Tribunal can award compensation where a party has breached the tenancy agreement or any provisions contained in the RTA and where the other party has suffered a loss because of that breach. It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in but for the breach.
When a provision of the RTA is breached which is stated to be an unlawful act then the Tribunal can consider awarding exemplary damages. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 1 .
Exemplary damages are not compensatory in nature, but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences. Background
The tenancy started on 30 October 2022 and ended on 14 August 2023 as a result of the landlord giving the tenant notice under section 51(2)(f) of the Residential Tenancies Act 1986 (RTA) that extensive alterations, refurbishment, repairs of the premises were to be carried out and it would not be reasonably practicable for the tenant to remain in occupation while the work is done.
The tenancy was managed by Julie Cunningham, property manager for PGG Wrightson Real Estate from the start of the tenancy until 10 May 2023 when Ms Cunningham carried out an inspection of the premises on and an argument occurred between her and the tenant. The landlord has managed the property personally since then. 1 Section 109 and Schedule 1A, RTA
On 14 May 2023 the tenant sent a 14-day notice to Ms Cunningham requiring the premises to comply with draught stopping, heating and insulation HHS within 14 days “or a plan signed off by the Owners put in front of me that I can possibly agree to”.
On 16 May 2023 the landlord/owner advised the tenant that they had taken over managing the tenancy from the property manager from 11 May and gave the tenant a 90-day notice to terminate as set out above. Did the premises comply with Healthy Homes Standards (HHS) as required?
The landlord does not dispute that the property did not comply with HHS at the start of the tenancy. The landlord had recently purchased the property and was carrying out renovations when the tenancy started.
The tenant claims the landlord has breached its obligations to meet HHS as the premises failed to comply with insulation, draught and heating standards by the date required.
A landlord has an obligation to comply with HHS under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA). Compliance dates for the HHS vary depending on the tenancy. In this instance as the tenancy commenced on or after 28 August 2022 but before 3 March 2025 the premises must comply with HHS by the 120th day after the commencement date of the tenancy. That means compliance was required in this tenancy at the beginning of the day on 27 February 2023.
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 set out the standards that a landlord must meet.
During the tenancy the landlord had two HHS reports carried out on the property. The first report (7 November 2022) was done by [Inspector 1] and set out remedial work needed for the property to comply with HHS. The property manager advised [Inspector 1] the remedial work was done and on the strength of that [Inspector 1] issued a HHS Compliance Certificate on 17 April 2023. The tenant was given a copy of the certificate, and soon after rang [Inspector 1] as in his view the premises was not HHS compliant. [Inspectors 1’s] assessor went back to the premises, inspected the remedial work and then withdrew the certificate verbally both to the tenant and the property manager stating that the underfloor insulation was not to standard and there was a gap in a window that needed sealing.
The landlord was told by the property manager that the HHS Compliance Certificate was withdrawn as the tenant was aggressive to Ms J, director of [Inspector 1]. Ms J’s evidence was that the tenant was not aggressive to her and that was not the reason the Certificate was withdrawn.
A second report by [Inspector 2] was completed on 10 May 2023, based on an inspection done on 8 May. Insulation
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
The tenant’s view is that the HHS are not complied with as: a) under the house is not fully insulated, and while the access is on the low side, it can be accessed and therefore can be insulated. He says there is around 500-600mm clearance on the northern side of the house; b) there is no insulation in the lounge, hall and kitchen ceilings, or in the walls in the bedrooms.
I find the premises meets the HHS insulation requirements for the following reasons: a) Underfloor insulation:
[Inspector 1’s] initial report failed the insulation. The landlord personally installed polystyrene blocks under the floor as much as he was able, which was not for the entire underfloor area, completing the work on 31 March. [Inspector 1’s] assessor passed the underfloor insulation as the property manager had advised the underfloor insulation was complete. After [Inspector 1’s] assessors re-inspected he failed the underfloor insulation. Ms J said the assessor is “a big man” and he could get under the house therefore he considered the crawl space was sufficient to be able to install insulation. She said [Inspector 1] had not been provided with any statements from insulation installers saying the space was too low and it was exempt.
[Inspector 2] failed the underfloor insulation on the basis that some underfloor insulation was missing and some displaced.
The landlord provided emails from two companies who install insulation. Both companies were sent photographs of the house; both companies commented that the available space look low in the photographs, commenting: “the general rule is we can insulate the underfloor if the measurement for entry & joist to ground is 450mm or above. It becomes a health & safety issue if the access is any less.” 2 and: “Sorry we are unable to install there judging by the space available in the photographs 3 .”
The landlord also referred to Tenancy Services Guide for Landlords which states: Areas of subfloor spaces that are too low to the ground for a professional installer to insulate safely are not required to be insulated until such time as it becomes possible (eg replacing floorboards, repiling).
The professional installers’ views were acquired after the HHS reports and after the landlord personally had installed some insulation. However the meaning of “not reasonably practicable to install” includes whether a professional installer cannot install insulation without creating health and safety risks which are greater than those normally acceptable 4 , rather than whether any person can get into the available space or not.
The view of professional installers is paramount, and while they have been asked to make their judgement based on photographs, I am satisfied from the evidence that the photographs provided accurately reflect the limited access space available and include photographs of the northern side, which the tenant says is the side with the largest access. Neither party has provided any measurements of the access space.
Having considering all of the evidence presented on the underfloor insulation I am persuaded that the underfloor space is more likely than not, being the onus of proof that applies, too low and that it is not reasonably practicable to install underfloor insulation. I find the premises is therefore exempt from this insulation standard. b) no insulation in the lounge, hall and kitchen ceilings, or in the walls in the bedrooms.
Both HHS reports found the premises complied with ceiling insulation. [Inspector 2’s] report noted that the pitched ceilings in the premises are exempt and that the remainder of the ceilings are insulated.
There is no requirement to insulate walls under the HH standards. Draught Stopping 2 [Insulation company 1] 3 [Insulation company 2] 4 Clause 26, Residential Tenancies (Healthy Homes Standards) Regulations 2019
The draught stopping standard requires that residential premises are free from unreasonable gaps and holes that are not an intentional part of the building, and which allow draughts 5 .
The tenant says the premises does not comply as there are: a) holes in the ceilings in the lounge, hallway and kitchen b) holes inside cupboards; cupboards are not lined and the exterior cladding boards can be seen when cupboard doors are open, and they are draughty c) some windows cannot be opened and those that can the glass falls out as there is no putty
[Inspector 1’s] report found no unreasonable gaps or holes in any rooms other than: a) the kitchen, which failed on the initial inspection; the report comments: “kitchen need sealing to glass in the window”. b) the front door; the report comments: “needs draught strip to be installed around the door”.
The property manager advised [Inspector 1] the remedial work was done for these areas and it issued the Compliance Certificate. Mrs J advised that when the assessor re-inspected the premises he discovered silicone was used to seal the window rather than putty. This was a further reason the HHS Compliance Certificate was revoked.
[The tenant/s]
The landlord arranged for a builder to seal the window highlighted by [Inspector 1] on 8 November 2022 and had personally sealed kitchen windows in the kitchen by 31 March. The property manager had arranged for a contractor to install a draught strip on the front door but the work was done on the back door by mistake. The landlord personally installed a draught strip on the front door sometime around late mid to late February 2023 6 . The landlord confirmed none of the work required by [Inspector 2] to meet HHS was completed before the end of the tenancy.
After considering all evidence presented I am satisfied the premises did not comply with the HHS for draught stopping by 27 February 2023 as there was insufficient sealing of the kitchen windows, and gaps in the ceiling including a crack that was leaking in the lounge. I am satisfied that the front door draught strip was probably installed before 27 February 2023. The HHS assessment reports do not support the tenant’s view that there were holes inside the kitchen 5 S 45(1)(bb), RTA and clause 26, Residential tenancies (HHS) Regulations 2019 6 The landlord was unsure of exactly when the work was done. cupboards or any draughts from gaps in the exterior cladding when the cupboard doors were open. Heating
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the ‘main living room’ to a required level. The heating standard defines what a qualifying heater is and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. Qualifying heaters must be fixed to the premises, in the room or supplying heat directly to the room, have a heating capacity of at least 1.5kW, have a thermostat if the heater is electric or a fixed heat pump, and must not be an unacceptable heater 7 . Where premises have more than one living room the ‘main living room’ is the largest room 8 .
Tenancy Services website 9 contains a useful guide in understanding what a living room space includes:
[Inspector 1’s] report found the heating (2 panel heaters) in the lounge, which it considered to be the main living room, met the HH standards. Its report recorded the kW requirement for the room as 1.5kW.
However [Inspector 2’s] report considered the kitchen and dining room to be the largest living room and therefore the main living room. It estimated the size of the kitchen/dining room at 20m² and the lounge at 16m². [Inspector 2] found the heating requirement in the kitchen/dining room to be 5kW and that the HHS were not met as there was no fixed qualifying heating source installed in this room.
I find [Inspectors 2’s] report to be most convincing evidence that the kitchen/dining area is the main living area. My reason for this includes that it considered and reported on the size of both rooms and has estimated the heating required for the kitchen/dining room as being at least 5kW, where [Inspector 1’s] report has the heating requirement for the lounge at 1.5kW which is significantly smaller. 7 Clause 9(1) Residential Tenancies (Healthy Homes Standards) Regulations 2019 8 Clause 8(2) Residential Tenancies (Healthy Homes Standards) Regulations 2019 9 www.tenancy.govt.nz/heating-tool/question-help/understanding what space to include
Even if [Inspector 1’s] estimate of the kW required for the lounge is incorrect (which well maybe the case) and the lounge is the larger room I am not satisfied on the evidence that the panel heaters installed in the lounge meet the HHS requirements.
[Inspector 2] also commented that the lounge has two panel wall heaters which are non-qualifying heat sources and as such is not permitted to be used as the primary heat source. Electric heaters can be used as a ‘top up’ another heating source or if the required kW for the area is less than 2.4kW 10 . That is, electric heaters that are not fixed heat pumps are unacceptable heaters if the required heating capacity is greater than 2.4kW 11 .
For the above reasons I find the premises do not comply with the HHS requirements for heating. Is the tenant entitled to compensation and exemplary damages for failing to comply with HHS for draught stopping and heating?
The premises was required to meet the HHS from 27 February 2023. It failed to do meet the heating and draught stopping standards from 17 February to 14 August 2023, when the tenancy ended.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The main effect of the breach on the tenant was that the house was cold, and described by the tenant as “freezing” in winter. The house is a 1910’s villa and is surrounded by quite large trees. The tenant says the house was not built for the sun and trees on the north side shade the house significantly. He said the constant cold conditions had an effect on his personal wellbeing, as it caused him not to be in his “right frame of mind.” He says he told the property manager during inspections of issues that needed to be fixed, including the draughts and the leak in the lounge ceiling but that nothing was ever done.
The landlord says they had not long bought the property and were part way through renovations to bring it up to HH standards when the property manager approached them to see if they would consider renting the property. They say the tenant moved in willingly knowing all work was not completed and that a HHS certificate had not been issued.
They say the renovations took longer than they had expected as the tenant insisted he move earlier than was contractually agreed, there was a small pool of 10 clause 9(2) and Schedule 1 clause 5 Residential Tenancies (Healthy Homes Standards) Regulations 2019 11 Clause 9 (2)(e) Residential Tenancies (Healthy Homes Standards) Regulations 2019 tradespeople in Waihi who were very busy and impacted by Covid, and as the [Inspector 1] report gave them imprecise feedback on what work was required to comply with HHS.
The landlord says they reduced the rent by $150.00 a week for the last three months of the tenants’ tenancy, providing a total reduction of $1,950.00 knowing that the tenant’s power bills would be higher in winter, and knowing that he would incur relocation expenses after they served the 90-day notice to terminate the tenancy. I accept the landlord’s evidence that property manager never told them about the leak.
The tenant has not supplied any details of his power bills, even though he had the opportunity to do so as the hearing was adjourned.
I am satisfied that the reduction in rent sufficiently covers the cost of higher power bills the tenant would have incurred and for that reason I find the tenant is not entitled to any further compensation for this breach.
However I find it is just to make an award of exemplary damages. I am satisfied that the landlord knew they needed to meet HHS, and knew the premises did not meet those standards when the tenancy started. The landlord had the ability to commence the tenancy on a date that suited them, and it is concerning that the landlord in part blames the tenant ”insisting” on the tenancy commencing earlier than they intended as a reason for them not meeting HHS requirements.
Likewise the landlord said they had started renovations on the property therefore they should have had good knowledge of the availability of tradespeople in Waihi, and factored that into whether they could meet HHS within the timeframe required of 120 days after the tenancy commenced.
In my view the [Inspector 1] report is not as thorough or convincing in its findings as the [Inspector 2] report. However if the landlord found it imprecise they could have commissioned another report sooner than May, when they commissioned the [Inspector 2] report.
For these reasons I find the element of intention is met on the part of the landlord.
I have outlined the effect on the tenant above. It is in the public interest that landlords meet the HHS within the time frame stated in the HHS legislation. The media coverage of the HHS has been significant and the need to meet these standards cannot be in anyway be surprising to any landlord. The standards have been introduced to set a standard that is required for houses that are being rented to tenants. It is no excuse that the tenant was willing to move in initially.
In making an award I consider the following as mitigating factors in the amount awarded: • The landlord reduced the rent which provided some immediate monetary relief to the tenant in terms of extra heating costs he incurred • I am satisfied that the property manager did not inform the landlord that the roof in the lounge was leaking • There is no evidence that the landlords have breached the HHS requirements previously.
I adopted as a starting point 40% of the maximum that can be awarded due to the serious nature of a HHS breach and have reduced this by 10% due to the mitigating factors. Accordingly I award $2,160.00 which I find to be just in the circumstances.

Did the landlord fail to provide HHS reports as requested?

Under section 45 (IAC) a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the HHS within 21 days after receiving the request. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 12 .
On 8 May 2023 the tenant requested copies of the HHS reports completed by [Inspector 1] and [Inspector 2] to the landlord.
The landlord has failed to meet its s45(1AC) obligations to provide the tenant with healthy homes information at all, let alone with the statutory timeframe after the tenant made his request. I find they have committed an unlawful act.
I find the landlord’s breach is intentional. The landlord was aware that the property manager had provided a copy of [Inspector 1’s] HHS certificate to the tenant in April and believed that was sufficient. I find that in the circumstances it is just to require the landlord to pay a sum in the nature of exemplary damages and make the order for $250.00 exemplary damages to the tenant because: a) the landlord ought to have been aware of the requirement to provide this information when asked by the tenant and intentionally did not provide it b) in keeping the information from the tenant, it denied the tenant the right to fully understand whether the premises met the HHS so that he was fully informed on the condition of the premises. c) It is in the public interest to deter and penalise a landlord who does not comply with its s 45 (1AC) obligations under the RTA and provide tenants with the information they are entitled to. 12 See section 45(1AD) and Schedule 1A, RTA Is the tenant entitled to compensation and/or exemplary damages on the basis that the termination notice retaliatory?
On 16 May 2023 the landlord gave the tenant a 90-day notice terminating the tenancy on 14 August 2023 on the basis that extensive alterations, refurbishment, repairs of the premises are to be carried out and it would not be reasonably practicable for the tenant to remain in occupation while the work was done (s 51(2)(f), RTA).
The tenant claims the notice is retaliatory as the notice was given two days after the tenant sent a 14-day notice to Ms Cunningham, the then property manager, requiring the premises to comply with draught stopping, heating and insulation HH standards. The tenant seeks exemplary damages.
Under section 54, RTA a notice may be declared retaliatory and of no effect, if the tenant makes the application within 28 days of receipt of the notice, and the Tribunal finds that, in giving the notice, the landlord was motivated wholly or partly by the tenant making a complaint or trying to exercise their rights under the Act or agreement. Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
However, the tenant’s application to the Tribunal was filed on or about 7 August 2023, which was well more than 28 days after he received the notice. The tenant’s application is too late for the Tribunal to be able to consider his application that the notice is retaliatory.
The District Court in Realty House Whakatane Ltd v Eschbank 13 concluded that the time limit in section 54 was “mandatory” rather than “directory”. Judge Ingram said: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant’s control such as documents being lost in the post or computer or internet outage or inaccessibility.”
Accordingly this claim is dismissed. 13 [2020] NZDC 16081 Filing fee:
As the tenant has mainly succeeded with the claim the filing fee is reimbursed. Suppression:
A party who is wholly or mainly successful in their claim is entitled to request suppression. The tenant seeks suppression and it is awarded. .
The landlord also seeks suppression Section 95A(4) RTA gives the Tribunal a discretionary power to grant name suppression “having regard to the interests of the parties and the public interest”. However there are no persuasive reasons, having regard to the interests of the parties and the public interest, why name suppression should be granted to the landlord in this instance.

Tenancy Tribunal case 4649170 — Healthy homes at 2 Stafford Street, Waihi, Waihi 3016

At a glance

Tenancy Tribunal case 4649170 — Healthy homes at 2 Stafford Street, Waihi, Waihi 3016

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to provide HHS reports as requested?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to provide HHS reports as requested?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions