What was Tenancy Tribunal case 4653754 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 4653754?

Compensation: HHS Inspection Report: $148.35 awarded to tenant; Compensation: Loss Of Laundry: $140.00 awarded to tenant; Compensation: Loss Of Use Of Oven: $150.00 awarded to tenant; Compensation: Overpaid Rent: $120.00 awarded to tenant; Compensation: Power To Dry Laundry: $18.42 awarded to tenant; Property Damage: $550.00 awarded to landlord; Property Damage: $150.00 awarded to landlord; Property Damage: $75.00 awarded to landlord

What type of tenancy dispute was case 4653754?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4653754?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10268805-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4653754 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 4653754?

Compensation: HHS Inspection Report: $148.35 awarded to tenant; Compensation: Loss Of Laundry: $140.00 awarded to tenant; Compensation: Loss Of Use Of Oven: $150.00 awarded to tenant; Compensation: Overpaid Rent: $120.00 awarded to tenant; Compensation: Power To Dry Laundry: $18.42 awarded to tenant; Property Damage: $550.00 awarded to landlord; Property Damage: $150.00 awarded to landlord; Property Damage: $75.00 awarded to landlord

What type of tenancy dispute was case 4653754?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4653754?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10268805-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4653754 — Property damage

Claims and awards in Tenancy Tribunal application 4653754 — net $198.23 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: laundry wall damage	$150.00		Repairs: laundry wall damage
Repairs: oven damage	$75.00		Repairs: oven damage
Repairs: Fridge insurance excess	$550.00		Repairs: Fridge insurance excess
Compensation: HHS inspection report		$148.35	HHS inspection report
Compensation: loss of laundry		$140.00	loss of laundry
Compensation: power to dry laundry		$18.42	power to dry laundry
Compensation: overpaid rent		$120.00	overpaid rent
Compensation: loss of use of oven		$150.00	loss of use of oven
Total award	$775.00	$576.77
Net award	$198.23
Total payable by Tenant to Landlord	$198.23

Claims and awards in Tenancy Tribunal application 4653754 — net $198.23 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: laundry wall damage	$150.00		Repairs: laundry wall damage
Repairs: oven damage	$75.00		Repairs: oven damage
Repairs: Fridge insurance excess	$550.00		Repairs: Fridge insurance excess
Compensation: HHS inspection report		$148.35	HHS inspection report
Compensation: loss of laundry		$140.00	loss of laundry
Compensation: power to dry laundry		$18.42	power to dry laundry
Compensation: overpaid rent		$120.00	overpaid rent
Compensation: loss of use of oven		$150.00	loss of use of oven
Total award	$775.00	$576.77
Net award	$198.23
Total payable by Tenant to Landlord	$198.23

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the tenant and landlord’s name and identifying details.
[The tenant/s] to pay [The landlord/s] $198.23 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $198.23 ([Bond number suppressed]) to [The landlord/s] immediately. The Bond Centre is to pay the bond of $2,401.77 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing on 24 th July 2023 and 19 th March 2024.
The tenancy began on 16 th July 2018 and ended on 29 th July 2023.
The tenants operated a mushroom growing business at the premises.
The landlord wanted to move back to live in the premises again a few months before the tenants were to move out after having purchased a house of their own.
The applications between the parties were submitted towards the end of tenancy.
The tenant claimed for compensation and exemplary damages for retaliatory notice, failure to maintain, failure to meet the Healthy Homes Standard (“HHS”), non-compliant insulation, reimbursement for the HHS inspection report, compensation for the landlord using the area under the house for storing items, compensation for loss of use of the laundry room, reimbursement for extra electricity used, unlawful rent increase, compensation for goods damaged by mould, unlawful entry, breach of quiet enjoyment, emotional distress, exceeding tenant liability and the loss of use of the oven.
The landlord made a cross-application seeking compensation and exemplary damages for having to take time off to prepare the application, compensation for outside tap repairs, curtain replacement, laundry wall damage, dining floor damage, archway damage, kitchen cabinet damage, water damage, and insurance excess.
I outline the reasons for my decision below. Retaliatory notice
At the first hearing, the issue regarding retaliatory notice was considered. The tenant sought for the termination notice served on 27 th May 2023 to be declared retaliatory and sought for $7,109.24 incurred for the extra costs and moving expenses including short term accommodation costs and storage feeds.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986 (“RTA”)
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 RTA.
The tenant argued that the retaliatory notice was in response to the numerous HHS, maintenance and quiet enjoyment issues raised by the tenant. 4653754, 46188733
The landlord explained that she was always going to be coming back to live at the premises to live which had originally been planned for 2020 but was delayed due to family illness. After that, her own health and medical procedures required her to be down in Hamilton until the week of 24 th July 2023. The termination notice was given to coincide with the last day of her therapy course so that she could come back to live in Auckland.
The landlord provided medical evidence and supporting letters from family to prove that the termination notice was for the landlord’s own reasons and not in retaliation of the issues raised by the tenant.
The tenants have been emailing the landlord for maintenance issues since 2020 and the landlord had been attending to them. In an email dated 30 th April 2023, the tenant acknowledged that the landlord had been doing maintenance and repairs herself but sought for professionals to attend for efficiency and timelessness.
Attached to the email were 14-day notices seeking for the kitchen windows to be made weathertight or to be replaced, gaps in the floorboard skirtings to be sealed, bedroom windows to be refurbished, and for landlord’s items to be removed by 15 th May 2023.
A further 14-day notice was given on 6 th May 2023 with the end date of 20 th May 2023 requiring the tap outside of the side of the house to be fixed, laundry drywall panel to be fixed, multiple spots on the walls to be painted, two unsealed holes to be sealed, windows to be repainted, varnish on the wooden floor to be attended to, for the mailbox to be attended to and the outside deck roofing to be leak proofed.
The tenant lodged an application with the Tribunal on 24 th May 2023 and the landlord served the termination notice on 27 th May 2023.
From the emails, it seemed that the landlord had been attending to the premises over the years but around her full-time work, weather constraints, health issues, and availability of tradespeople.
Despite the proximity between the date of the tenant lodging an application with the Tribunal and the landlord’s termination notice, I do not find that the termination notice was retaliatory. I find it was genuinely based on her own health and medical circumstances at the time.
As I indicated this at the first hearing, the parties agreed for the tenancy to be terminated on Saturday 29 th July 2023. Failure to maintain
The tenant claimed that the landlord has breached her obligations under section 45 of the RTA. 4653754, 46188734
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of this 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 RTA.
The maintenance issues were involving the list of items covered above in the retaliatory notice claims.
Having seen the photos, I do not find that the tenant has proven the claim regarding failure to maintain. On the contrary, I find that the landlord had been maintaining the premises to a reasonable state of repair over the years. She had attended to the matters in order of urgency and the photos prove that the premises was reasonably well maintained.
It is true that there are some areas that still need attention. However, I am satisfied with the maintenance provided by the landlord.
The other issue regarding dampness and mould is discussed separately below. Failure to meet the insulation standard
The tenant claimed that the premises did not meet HHS specifically that the premises was not sufficiently insulated and that the premises was not free from dampness and mould.
First of all, the HHS compliance date for the premises had not been reached during the tenancy as the tenancy predated the introduction of HHS. The premises did not need to be HHS compliant.
However, the landlord still needed to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
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. 4653754, 46188735
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.
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) RTA.
The landlord provided an HHS assessment report from 4 th May 2023 to prove that the insulation did not meet the required standard. I find that the tenant has proven that the ceiling insulation did not currently meet the required standard.
Furthermore, the HHS report noted that the premises did not meet the moisture ingress and drainage standard, draught stopping, ventilation and that the external handrails required attention as the balustrades was rotten exposing a rusted nail to stick out.
The landlord had a licenced building practitioner (“LBP”) give evidence in support of the landlord’s position. The LBP said that he checked the insulation back in 2018 before the tenancy began and ensured that the insulation met the standard at the time.
The LBP was cross-examined by the tenant and I also had questions to ask him directly.
After having heard the LBP’s evidence, I was satisfied that the landlord did not intentionally neglect the insulation standard.
I do not grant any exemplary damages for the failure to meet the insulation standard.
However, I find that the tenant should be reimbursed for the HHS inspection report. Although the premises did not need to be HHS compliant, it was necessary to obtain the report to identify the shortcomings of the premises.
I order the landlord to reimburse the HHS report cost of $148.35. Compensation for the landlord storing items under the house
The tenant sought compensation of $2,520.00 for the landlord storing her personal items under the house calculated at a rate of $10.00 per week from the start of the tenancy.
The area the tenant was referring to was an area under the house that had been locked away containing mostly items for maintenance purposes such as paint and tools. The photos did show that there were some miscellaneous personal items there also. 4653754, 46188736
Most importantly, the tenant could not prove that the area was part of the tenancy to begin with. I find that it was never part of the tenancy. There is no basis for compensation for the area under the house.
This claim is dismissed. Laundry issue
There had been a water leak in the laundry from 6 th November 2022. The landlord attended with the LBP on 8 th November 2022, located the leak, PVC wrapped the source and treated the area for mould twice. On the following days, an electrician and a plumber attended.
The wall in the laundry got repaired on 4 th and 5 th of February 2023 and an electrician finalised the job on 11 th February 2023.
The area was not dealt with more quickly as the tenant’s parents came to visit in December 2022 and the work was not particularly urgent at the time.
The tenant said that the laundry could not be used for 14 weeks. The landlord said that the laundry continued to be used at least as storage.
I find that that the water leak was not due to the tenant’s fault. The tenant was unable to fully utilise the laundry during that time.
I order the landlord to compensate the tenant $140.00 for the loss of full use of the laundry calculated at $10.00 per week.
Further to that, I accept that there was extra electricity running costs incurred for the fans used to dry out the laundry. Having calculated on 24 hours of the fan running for 20 days, I order the landlord to compensate the tenant $18.42 for the electricity running costs. Unlawful rent increase
From 12 th August 2020, rent increases are limited to once every 12 months. See section 24 RTA.
Prior to that, rent increases were allowed every 6 months.
The landlord increased rent on 3 rd February 2020, 1 st February 2021, 31 st January 2022 and 27 February 2023. The landlord was not entitled to increase the rents without waiting the full 12 months since the previous rent increase.
As this applies to rent increases from 12 th August 2020 onwards, the overpayments from 2021 to 2023 needs to be reimbursed.
I order the landlord to pay the tenant back $120.00. 4653754, 46188737 Compensation for goods damaged by mould
The tenant sought for compensation for goods damaged by mould. There was a Nike golf bag damaged by mould in the bedroom cupboard and there were also curtains damaged by mould.
The tenant claimed that the mould was a direct result of the damp and mouldy conditions present in the rental premises. This being made worse by the lack of ceiling insulation and the damp wall in the toilet adjoining the cupboard.
Both parties are responsible for controlling the mould. Having seen the photos, I do not find that the premises was inherently suffering from dampness and mould. Leaving a used golf bag in the cupboard in Auckland without regularly airing the cupboard will inevitably lead to mould growth to some degree.
Further to this, I cannot discount the increased moisture from the tenant’s commercial mushroom business.
With temperature differences on either side of the windows, curtains are also susceptible to mould.
I am not satisfied that the premises was suffering from dampness and mould. The landlord is not liable to pay compensation to the tenant for this.
I dismiss this claim. Unlawful entry
The tenant claimed that the landlord entered the premises without following the correct notice periods as stipulated in section 48 RTA.
However, the tenant acknowledged that there was never any time when the landlord entered the premises without the tenant’s consent.
If the tenant freely gave consent for the landlord to enter at, or immediately before the time of the entry, the landlord is able to enter under section 48(1) RTA.
Accordingly, I find that there was no unlawful entry by the landlord.
This claim is dismissed. Breach of quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
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. See section 38(3) and Schedule 1A RTA. 4653754, 46188738
The tenant said that the landlord accessed the storage area under the house to get her personal items about 20 times over the 5 years. On average this is around 4 times a year. Each time, the duration would be anywhere between 1 hour to maximum 8 hours.
The tenant said that the landlord came to do the hedge trimming on 2023 ANZAC day despite the tenants telling the landlord not to come as the tenant’s family had COVID. The tenant acknowledged that hedge trimming was the landlord’s responsibility and that there was no contact with the landlord physically.
The tenant also raised issues with very long inspections, not giving arrival time, asking to leave keys and reminding the tenant not to have visitors “staying for any length of time”.
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.
I do not find that there was any pattern of behaviour directed towards the tenant that meets the definition of harassment. I do not find that the landlord interfered with the tenant’s quiet enjoyment of the premises.
I dismiss this claim. Emotional distress
The tenant claimed $11,211.00 in compensation for emotional harm, health issues, lost work time and financial losses associated with taking annual or sick leave resulting from multiple breaches of the RTA by the landlord.
I do not find that there was any intentional wrongdoing by the landlord to warrant consideration of this claim.
This claim is dismissed. Exceeding tenant liability
The tenant claimed that the landlord requested the tenant to pay for the damage in relation to an outside tap and water damage on the floors and cabinetry by the fridge. The tenant says that this was unlawful under section 49D RTA.
The tenant says that the tap had pre-existing damage and that they are not liable for the damage on the floors and cabinetry by the fridge. 4653754, 46188739
Section 49D prohibits the landlord from demanding amounts in excess of what the tenant is liable to pay – these being maximum 4 weeks’ rent for careless damage or the full amount if intentional damage.
It does not mean that the landlord cannot ask the tenant to pay for damages that the tenant disputes the liability for. That is essentially what all defended damage claims in the Tribunal are.
I dismiss this claim. Loss of use of the oven
The tenant sought compensation for the loss of the use of the oven.
The oven issue was first raised by the tenant on 29 th May 2019. A technician came on 31 st May 2019 and an oven part was ordered. It was fixed in full by 17 th June 2019.
However, the oven again had issues in July 2022. It was attended to and was fixed again.
In December 2022, the oven stopped working. There was evidence of the oven not working between 1 st and 9 th December 2022 and again from 13 th to 18 th February 2023. The landlord replaced the oven entirely on 18 th February 2023.
Although the oven did not work, the stove top was working and the microwave also worked. However, the tenant missed out on their daily cooking in the oven.
The tenant has proven with emails that the oven did not work on the above dates.
I order the landlord to pay the tenant $150.00 calculated at $10.00 per day for the loss of use of the oven. Further claims dismissed
The tenant amended the application to claim that the landlord had terminated the tenancy without grounds as the landlord had a house in Hamilton also and that the Auckland premises was not her primary place of residence.
The landlord explained that this was her primary place of residence in Auckland and that she also has a house down in Hamilton that she resides in when she is down there.
The Auckland premises is used by the landlord, not rented out to subsequent tenants and therefore is her primary place of residence in Auckland. The RTA cannot be read to mean that the landlord is forced to give up other premises in other cities to make one as the primary place of residence. 4653754, 461887310
The tenant also raised issues with trying to reach a settlement before this hearing.
Section 81(3) RTA specifically allows for settlements to take place when a cause of action is believed to have accrued.
These additional claims are dismissed. Landlord’s cross-application
Having considered the tenant’s claims, I now turn to the landlord’s cross- application. Compensation for time taken to prepare for the hearing
As I have done with the tenant’s claim for compensation for emotional distress, I do not find that there is any basis for seeking for compensation for time taken to prepare for the hearing. That is a normal course for all hearings that come before the Tribunal. This claim is dismissed. Damage claims
For damage claims, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent. See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a 4653754, 461887311 person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The Tribunal must also take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
Of the landlord’s claims, I do not find that the landlord has proven that the outside taps were damaged by the tenant. The tenant had email evidence proving that the damage was pre-existing.
In relation to the curtains, I find that they were beyond 8 years old leaving no value left after depreciation. Furthermore, I do not find that the tenants damaged or disposed of the curtains.
In relation to the laundry wall damage, the tenant accepted having accidently created the hole. I order the tenant to pay the landlord $150.00 as compensation.
In relation to the dining area flooring, I do not find that the damage was more than fair wear and tear.
In relation to archway damage, I find that it was no more than fair wear and tear.
Regarding kitchen cabinetry, I find that the damage was no more than fair wear and tear.
In relation to the new oven, I find that there was damage carelessly caused by the tenant. I order the tenant to pay the landlord $75.00.
In relation to the water damage to the downstairs laundry and under house, I do not find that it was caused by the rats that resulted from the tenant’s mushroom business. I dismiss this claim.
In relation to insurance excess for water damage in the kitchen, I find that it had been caused as an accidental event due to the tenant’s fridge leaking. The tenant did not notify the landlord of the damage.
I find that the tenant is liable for the damage as the damage was caused carelessly. I order the tenant to pay the landlord $550.00 for insurance excess. Other claims not granted
The landlord sought for full commercial decontamination of the premises to rid itself of any mushroom spores. 4653754, 461887312
I agree with the tenants that the mushroom growing business was well maintained and there is no sign of anything that requires full decontamination of the premises.
In relation to the final water bill amount, there was no actual reading of the final meter reading. The final invoice covers a period when the tenant had already left the premises.
Therefore, these claims are dismissed. Name suppression
I grant name suppression for both parties as sought.

Tenancy Tribunal case 4653754 — Property damage

At a glance

Tenancy Tribunal case 4653754 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions