Published tribunal order
Tenancy Tribunal case 4656110 — State of repair
Decided 21 Dec 2023 · Published 21 Dec 2023 · Application 4656110
- State of repair
- 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 tenants’ names and identifying details.
- By joint consent, the tenancy of the tenants at [Tenancy address suppressed] is terminated, and possession is granted to Amy Bradley, at 11:59pm on Saturday 24 February 2024.
- Amy Bradley is to pay the bond of $1,650.00 to Toni Heath and Dr. Gregory Chawynski on or by 11:59pm on Monday 26 February 2024.
- Amy Bradley must pay the tenants $10,240.44 immediately, calculated as shown in the table below, $11,890.44 including refunding the bond:
Reasons
- Both parties attended the hearing.
- The tenants applied for: a. Compensation for damage to their personal property and their cats as well as breach of their quiet enjoyment due to free range chickens making loud noises outside of their home, causing damage to their outside furniture and attacking their cats on several occasions that resulted in veterinary expenses; b. Compensation for renting unlawful premises to them for nearly 5 years; c. Exemplary damages for the landlord’s failure to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes and the landlord’s failure to provide adequate means for the collection and storage of water; d. A fine for the landlord’s failure to lodge the bond with the Bond Centre within 23 days of the tenants having paid it; e. The termination notice issued by the landlord on 18 November 2023 to be declared a retaliatory notice and invalid as it was issued after the tenants 5 September 2023 application to the Tribunal.
Were the premises unlawful?
- The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
- Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
- The tenant provided the following evidence that the premises they have been residing in since 1 March 2019 is not permitted by the Council to be lawfully occupied for residential purposes: a. An email chain dated 18 February 2019 between David Prescott and Paul McKinney that indicates the building, now occupied by the tenants, was designed to be used as an office for one person and that was the basis on which the application for a building and planning certificate was made; b. A copy of the Northshore City Council’s 2004 approval of the plans and specifications for a proposed barn/office addition to the property that was clearly consented to be used as an office and not a residential premise. The wastewater disposal design section of this document states “the existing dwelling is currently being used as a 4 bedroom plus study with 4 persons occupying the residence permanently. This situation is unchanged by the proposed barn/office addition which includes for office amenities. Hence design for additional wastewater disposal; based on the number of persons occupying/using the office facility who are not current residents at the existing dwelling. This amounts to 2 persons. Allow for 3 persons say at 40 litres per day per person”...or “120 litres per day”... this is “equivalent to less than an additional 1 person occupant in a household” and “existing septic tank is suitable for up to 4500 litres or 3300 litres so should be ok” for the purposes of adding an additional 120 litres to the wastewater load; c. Office extension building plans that show the premises occupied by the tenants are designed to be used as an office; and d. The tenants applied in November 2022 to have fibre installed at the premises. In June 2023, they were informed that the building was not consented as a separate residential premise and therefore fibre-based internet services could not be connected to the premises.
- The landlord called Ms Cook as a witness. During her evidence she confirmed that she had lived next door to the parties to this proceeding for 20 years. She was aware that the premises had not been consented for residential purposes when it was built by the owners that had the third dwelling built and was surprised when the next owner, that the landlord purchased the property from, had advertised the property as being a 3-dwelling property. When Ms Cook enquired, she was told that the third dwelling had consent to be used as residential premises. She thought this was odd but did not question any further as it was none of her business.
- The landlord confirmed that she had not been made aware during the sale and purchase process that the third dwelling was not lawfully allowed to be used as a residential premise and she did not make any such enquiries as the dwelling was tenanted when she had looked to purchase the property.
- The landlord’s father, the current owner of the property, also stated that he was not made aware by his lawyers during the sale and purchase process that the third dwelling could only be used as an office by one additional person to the permanent residents of the main dwelling. He also stated that he did not make any further enquiries to ascertain if the third dwelling on the property could be rented out for residential purposes. However, he confirmed that his lawyers did order a Land Information Memorandum (LIM) as part of the sale and purchase process. LIM’s are comprehensive reports that have all relevant information the Council knows about a property or section, including any consents, notices, orders or requisitions affecting the land or buildings and classifications on the land or buildings notified to the Council by network utility operators in relation to the Building Act 2004. It is unlikely that the landlord did not know that the premise rented to the tenants was not consented as a residential dwelling.
- I find that the premises rented to the tenants are unlawful residential premises that cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to take all reasonable steps to ensure that at the commencement of the tenancy: a. There was no legal impediment to the occupation of the premises for residential purposes (s36 of the RTA); or b. That the dwelling complied with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises (s45(1)(c) RTA).
- Section 78A(4)(a) states that where a breach of ss36 and 45(1)(c) has occurred, the Tribunal may order the landlord to pay the tenant: (i)the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii)an amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct:
- The tenants suffered significant loss of amenities and enjoyment of the premises due to issues that resulted from the unlawful nature of the premises such as ongoing access to water issues, water restrictions, wastewater and effluent overflows, pungent odours from the effluent overflows outside their kitchen and deck and an inability to have fibre-based internet services connected to the premises because the premises are unlawful, despite an express promise in the tenancy agreement by the landlord to have fibre installed to the premises by the end of 2019. In accordance with s78A(4)(a) I award the tenants $5,000.00 rent rebate, being $1,000.00 for each year of their 5-year unlawful tenancy.
- The tenants have enjoyed a good relationship with the landlord and have also enjoyed the use of the premises for 5 years, with some inconvenience in relation to having water trucked in every 14 days, being told to conserve water after Mr Gilby left, being without water for periods of between 2 to 4 days and having issues with the sewerage system from time to time, despite having the septic tank cleaned out more regularly than would be usual for a property that had a maximum of 4 permanent residents. The fact the tenants have continued living in the unpermitted dwelling for 5 years, despite these issues leads me to find that it would not be fair or reasonable, having regard to the special circumstances of the matter, to reimburse any more of the 5 years rent they have paid to the landlord. Failure to repair and maintain.
- The tenants claim the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must, among other things, provide the premises in a reasonable state of cleanliness and repair, must comply with any relevant enactment in relation to buildings, health and safety and provide an adequate means for the collection and storage of water if there is no reticulated supply.
- 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.
Did the landlord fail to repair and maintain the premises?
- On the balance of probabilities, the evidence provided by the parties supports a finding that the landlord was informed about and failed to remedy in a reasonable timeframe: a. .A leak in the kitchen in a reasonable and timely manner on 2 February 2020 when the outside cladding of the premises failed and water came in behind the windowsill and created mouldy and damp conditions ion the kitchen cupboards that resulted in kitchen appliances, pots and pans being damaged and having to be thrown away. In the 1 March 2023 lease renewal letter the tenants again raise the kitchen leak not having been remedied and raise issues with the broken shower hose, shower and toilet roll holder that had not been remedied at the date of the hearing; b. Damage caused by severe weather events in January/February 2023 where the two bedrooms facing the driveway developed major leaks after Cyclone Gabrielle. The tenants were given a dehumidifier that was designed for normal residential purposes and told to dry the place out themselves, instead of being given access to commercial drying units and commercial dehumidifiers that would have quickened the drying out process and made it faster to remove all the moisture out of the walls and the air. Both tenants provided evidence that they had suffered respiratory illnesses from living in the damp mouldy conditions, particularly through the winter months. The last time the issue of the leaks were raised was in July 2023 as the tenants had given up hope that any of the leaks would ever be remedied as the landlord had not taken any steps to remedy the kitchen leak from 2020 or the new 2023 leaks in the bedrooms. The tenants felt like their concerns just fell on deaf ears and around July 2023 the landlord had significant relationship issues with her partner, that had been their main point of contact during the tenancy, with the partner ultimately being trespassed from the property and a protection order taken out against him by the landlord. The tenants considered it appropriate to keep their distance at this time and not add to the landlord’s stress; c. On 14 September 2023, the tenants notified the landlord that there were issues with the ignition switch on the as stove. A contractor was sent to inspect the stove but failed to fix the ignition switch and refused to issue a gas compliance certificate for the stove. This issue remained unresolved as at the date of the hearing and has made the tenants anxious about the safety of the gas stove and causing them ongoing inconvenience having to light the stove manually taking many times to get the stove ignited; d. The heat pump was not serviced throughout the tenancy and does not work properly. This issue has been raised numerous times during the tenancy but remained unremedied as at the date of the hearing; e. The sewage tank frequently overflowed as it was not fit for the volume of effluent it was required to cope with, due to the premises being unlawful, and the pump was also not fit for purpose. A new pump was not installed until August 2023, despite the tenants complaining about the pump not working properly causing a backup of effluent in the toilet and it having to be manually flushed. The sewage and water pump systems completely failed numerous times during the tenancy and remedial work required not undertaken to prevent these predictable failures. At times the tenants were stuck without a water pump for two weeks and they often had raw by their kitchen and deck that smelt bad and created a health hazard for weeks at a time.
- I find the landlord has 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 interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- I find it just to require the landlord to pay a sum in the nature of exemplary damages because I am satisfied that the landlord committed the unlawful act intentionally, and that, having regard to: (a) the landlord was aware of the issues raised by the tenant, as was her partner who they were told was to be their main point of contact for anything to do with their tenancy, until he was asked to leave the property by the landlord in June/July 2023 but did not act in a timely or reasonable timeframe to remedy the breaches of the RTA and the tenancy agreement; (b) the effect of the unlawful act on the tenant has been significant as they have had to living in damp mouldy conditions without a functional heat pump, often without access to fresh water and being exposed to raw sewage outside their kitchen and deck. In addition, they are forced to use a stove that they have no assurance is safe to use and complaint with gas regulations; and (c) the interests of the tenant against whom the unlawful act was committed to receive a penalty payment from the landlord for these significant breaches of the landlords obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes and their loss of amenities; and (d) It is in the public interest to penalise a landlord for such breaches as outlined above. See section 109(3)(a) to (d) of the RTA. Did the landlord fail to provide adequate means for the collection and storage of water?
- Section 45(1)(ca) of the RTA states that if the premises do not have a reticulated water supply, the landlord shall provide adequate means for the collection and storage of water.
- Section 45(1A) states failure by the landlord to comply with any of paragraphs (a) to (ca) of subsection (1) is declared to be an unlawful act.
- 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(1A) and Schedule 1A Residential Tenancies Act 1986.
- The premises did not have a reticulated water supply and the landlord failed to provide adequate means for the collection and storage of water for the premises. Evidence provide by the tenants was that the small water tank provided for the premises required filling from an external water service provider every 14 days throughout their tenancy. The evidence provided also showed that at least 35 times during the tenancy the tenants were without water for anywhere between 2 and 6 days at a time and that after the landlord’s partner moved out the landlord put pressure on the tenants to conserve water to the point that they were unable to use the dishwasher or undertake other basis day to day activities at their home due to trying to preserve their measly water supply when they were promised at the beginning of the tenancy that they would be supplied with as much water as they reasonably required. After the landlord’s partner moved out getting water became much more challenging as she stated she is a single mother without adequate funds to fund the ongoing purchase of water. Her partner had owned a water company that had supplied the tenants water needs prior to the domestic issues that led to the landlord’s partner being trespassed from the property.
- I find it just to require the landlord to pay a sum in the nature of exemplary damages because I am satisfied that the landlord committed the unlawful act intentionally, and that, having regard to: (e) the landlord was aware of the issues with the water and that the tenants had no way of collecting and storing rain water and were totally reliant on the fortnightly timely or reasonable timeframe to remedy the breaches of the RTA and the tenancy agreement; (f) the effect of the unlawful act on the tenants has been significant as they have had to living in damp mouldy conditions without a functional heat pump, often without access to fresh water and being exposed to raw sewage outside their kitchen and deck. In addition, they are forced to use a stove that they have no assurance is safe to use and complaint with gas regulations; and (g) the interests of the tenant against whom the unlawful act was committed to receive a penalty payment from the landlord for these significant breaches of the landlord’s obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes and their loss of amenities; and (h) It is in the public interest to penalise a landlord for such breaches as outlined above. See section 109(3)(a) to (d) of the RTA. Did the landlord breach the tenants’ quiet enjoyment of the premises?
- [The tenant/s] claims the landlord has harassed them because of the unwanted presence and impact of up to 20 free range chickens and 6 roosters pooping on their outdoor furniture and stripping the paint off it as well as filing the furniture with chicken fleas and/or lice that required constant decontamination. In addition, these chickens/roosters were loud and caused disturbances to the tenants’ quiet enjoyment of their premises.
- 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) Residential Tenancies Act 1986.
- 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.
- 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.
- The landlord was informed by the tenants repeatedly that their peace and quiet enjoyment of the property was being significantly disturbed by the free ranging of these animals and their propensity for congregating on the tenants’ deck and on their outdoor furniture. The tenants asked the landlord and her partner to coup the chickens and roosters, but they refused. At one stage the landlords partner shot several of the chickens, which the tenants found distressing. The chickens bred again and soon increased their number s again. The partner of the landlord did start to build a chicken coup, but it was never completed and was abandoned down by the duck pond. I find they have committed an unlawful act.
- 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. See section 109(3) Residential Tenancies Act 1986.
- I find it just to require the landlord to pay a sum in the nature of exemplary damages because I am satisfied that the landlord committed the unlawful act intentionally, and that, having regard to: (i) the landlord was aware of the issues with the chickens/roosters and failed to remedy the situation in a timely or reasonable timeframe causing loss to the tenants who will have to throw away the outdoor furniture when they move and have had to pay for flea/lice treatment for the furniture on an ongoing basis during their 5-year tenancy; (j) the interests of the tenants, against whom the unlawful act was committed, to receive a penalty payment from the landlord for this breach of the tenants’ quiet enjoyment of the premises; and (k) It is in the public interest to penalise a landlord for such breaches as outlined above. See section 109(3)(a) to (d) of the RTA. Failure to lodge bond
- The tenants’ claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord collected the bond of $1,650.00 at the start of the tenancy. The tenants have made enquiries just prior to the hearing and found that the bond had never been lodged with the Bond Centre. I find they have 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 interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord failed comply with the statutory requirement to lodge the bond with the Bond Centre within 23 working days and even after receiving the tenants’ application to the Tribunal still had not remedied the breach by the date of the hearing;
- The tenants’ have no security for their money that they have placed in trust for the security of the landlord should they fail to meet their obligations as a tenant when the tenancy terminates; and
- It is in the interests of the tenants, against whom the unlawful act was committed, to receive a penalty payment from the landlord for this breach of the s19(1) of the RTA; and
- It is in the public interest to penalise a landlord for such breaches as outlined above. See section 109(3)(a) to (d) of the RTA. Was the termination letter issued in retaliation for the tenants’ application to the
Tribunal?
- On 18 October 2023, the landlord gave the tenant a 90-day notice ending the tenancy on 16 January 2024. The tenant claims the notice is retaliatory.
- 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.
- 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.
- The landlord issued the 90 day notice to terminate the tenancy on 16 January 2024 so that she could extensive alterations, refurbishment, repairs, or redevelopment of the premises, and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and the work is to begin, or material steps towards it are to be taken, within 90 days within 90 days of 16 January 2024.
- The tenants made their application to the Tribunal on 5 September 2023 and claim that the landlord had no intention of carrying out these works and sought to terminate the tenancy in retaliation for the tenants seeking to exercise their legal rights under their tenancy agreement and s51(2)(f) of the RTA.
- The landlord denied this and maintained she was intending to carry out the works, but near the end of my questioning she clearly stated that she did not have the funds to carry out these works in the timeframe required by s51(2)(f) of the RTA.
- The parties by mutual consent agreed to end the tenancy at 11:59pm on Saturday 24 February 2024. Therefore, I was not required to make a decision on the tenant’s retaliatory notice claim. If I had been asked to do so, I would have found that the landlord had committed an unlawful act by issuing a retaliatory notice when she had no intention of carrying out the work claimed in the statutory timeframe required as by her own evidence she did not have the funds t do so as a solo mother who was having significant relationship issues with her ex-partner.
- Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986. However, I am not required to consider these remedies as the matter has been agreed by consent. However, the tenants’ reasons for bringing this claim was to dissuade the landlord from conducting herself in this manner with future tenants. As such I have traversed this issue in my decision. Reimbursement of filing fee
- Because the tenants have wholly succeeded with the claim, I must reimburse the filing fee.