What was Tenancy Tribunal case 4656272 about?

The tribunal order states: The claim is dismissed.

How much money was awarded in case 4656272?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4656272?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4656272?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10836785-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4656272 about?

The tribunal order states: The claim is dismissed.

How much money was awarded in case 4656272?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4656272?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4656272?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10836785-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4656272 — Healthy homes

Order

The claim is dismissed.

Reasons

Both parties attended the hearing which was set down as a rehearing of the tenants’ application for compensation and/or exemplary damages for the landlords alleged failure to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS), heating standard. This was the sole issue to be decided. 1
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), requires compliance with the HHS heating standard. As this tenancy commenced 2 between 1 July 2021 and before 28 August 2022, it was required to be compliant with the HHS within 90 days of the commencement of the tenancy.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. 1 Tribunal decision 31 May 2024 2 On 16 June 2022
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/. The HHS does provide exemptions in specific circumstances.
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) RTA.
Ms Smith submits that the heating was insufficient in the property, in particular the kitchen heater did not work well and did not heat the space given it was so close to the door. When they first took over the tenancy the kitchen area was the only living space as the other rooms were being used as bedrooms. At some point during the tenancy, they used one of the former bedrooms as a lounge. She says they raised the issue of the heating being substandard once orally but were too scared to raise it again in case their rent was increased.
She accepts she only used the kitchen heater a couple of times during her time there and her partner removed the heater in the room they used as a lounge. She says they preferred to use their own Delongi heaters as they are more energy efficient.
[The landlord’s representative] on behalf of the landlord submits that they have always intended to comply with the HHS and in fact have gone to lengths to exceed it in some ways, such as installing heaters in all bedrooms and a shower dome over the shower. With respect to the heating, there was a 2- kilowatt (kW) fixed heater installed on the kitchen wall which had a remote and thermostat. This specific heater was purchased after using the calculator on the Tenancy Services website. He is of the view that it was compliant.
Since the tenancy ended, he has had a heat pump installed in the kitchen and on the advice of the electrician and Healthy Homes Assessor (the assessor) it has been installed in the same place as the original heater. He says the tenants never raised a concern about the heating and had they, he would have addressed it. He submits that it is important to them to ensure the home is healthy and warm.
In the room that the tenants ostensibly used as a lounge there was a 2kW fixed heater which they had installed prior to this tenancy. It had been removed at the end of this tenancy by the tenants however is still in working order. When speaking with the electrician he advised that it would be a major undertaking to install a heat pump in that room as it has a 7 metre drop and so would require scaffolding.
Both the Assessor and the electrician recommended that the main source of heating needs to be in the kitchen as that is the main living space in this property.
The tenants are the applicants here and therefore have the burden of proof. What that means is that they have to establish to a standard of the balance of probabilities, that the landlord has breached the HHS heating standard. On the evidence I have been provided with, I do not find the claim substantiated.
The tenants’ claims were filed in response to the landlord’s claims, quite some time post tenancy. The evidence does not establish they raised the issue of heating during the tenancy, and they barely used the provided heaters, instead preferring their own. The landlord was not made aware they had repurposed a bedroom into a living room and regardless both heaters were fixed, had thermostats and were over 1.5kW in heating capacity. I accept [The landlord’s representative] evidence that he used the calculator on the Tenancy Services website to ensure he purchased and installed sufficient heaters.
As an aside, I would be barred from considering a claim for exemplary damages regardless as under s.109(2)(b) of the RTA, an application for exemplary damages must be brought within 12 months of the commission of the unlawful act. This home needed to be HHS no later than 14 September 2022. This claim was filed on 27 May 2024, therefore in excess of the statutorily required 12 months.
Accordingly, the claim is dismissed.
The landlord has applied for suppression and as they were successful in defending their application, 3 I approve that.

Order

The claim is dismissed.

Reasons

Both parties attended the hearing which was set down as a rehearing of the tenants’ application for compensation and/or exemplary damages for the landlords alleged failure to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS), heating standard. This was the sole issue to be decided. 1
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), requires compliance with the HHS heating standard. As this tenancy commenced 2 between 1 July 2021 and before 28 August 2022, it was required to be compliant with the HHS within 90 days of the commencement of the tenancy.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. 1 Tribunal decision 31 May 2024 2 On 16 June 2022
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/. The HHS does provide exemptions in specific circumstances.
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) RTA.
Ms Smith submits that the heating was insufficient in the property, in particular the kitchen heater did not work well and did not heat the space given it was so close to the door. When they first took over the tenancy the kitchen area was the only living space as the other rooms were being used as bedrooms. At some point during the tenancy, they used one of the former bedrooms as a lounge. She says they raised the issue of the heating being substandard once orally but were too scared to raise it again in case their rent was increased.
She accepts she only used the kitchen heater a couple of times during her time there and her partner removed the heater in the room they used as a lounge. She says they preferred to use their own Delongi heaters as they are more energy efficient.
[The landlord’s representative] on behalf of the landlord submits that they have always intended to comply with the HHS and in fact have gone to lengths to exceed it in some ways, such as installing heaters in all bedrooms and a shower dome over the shower. With respect to the heating, there was a 2- kilowatt (kW) fixed heater installed on the kitchen wall which had a remote and thermostat. This specific heater was purchased after using the calculator on the Tenancy Services website. He is of the view that it was compliant.
Since the tenancy ended, he has had a heat pump installed in the kitchen and on the advice of the electrician and Healthy Homes Assessor (the assessor) it has been installed in the same place as the original heater. He says the tenants never raised a concern about the heating and had they, he would have addressed it. He submits that it is important to them to ensure the home is healthy and warm.
In the room that the tenants ostensibly used as a lounge there was a 2kW fixed heater which they had installed prior to this tenancy. It had been removed at the end of this tenancy by the tenants however is still in working order. When speaking with the electrician he advised that it would be a major undertaking to install a heat pump in that room as it has a 7 metre drop and so would require scaffolding.
Both the Assessor and the electrician recommended that the main source of heating needs to be in the kitchen as that is the main living space in this property.
The tenants are the applicants here and therefore have the burden of proof. What that means is that they have to establish to a standard of the balance of probabilities, that the landlord has breached the HHS heating standard. On the evidence I have been provided with, I do not find the claim substantiated.
The tenants’ claims were filed in response to the landlord’s claims, quite some time post tenancy. The evidence does not establish they raised the issue of heating during the tenancy, and they barely used the provided heaters, instead preferring their own. The landlord was not made aware they had repurposed a bedroom into a living room and regardless both heaters were fixed, had thermostats and were over 1.5kW in heating capacity. I accept [The landlord’s representative] evidence that he used the calculator on the Tenancy Services website to ensure he purchased and installed sufficient heaters.
As an aside, I would be barred from considering a claim for exemplary damages regardless as under s.109(2)(b) of the RTA, an application for exemplary damages must be brought within 12 months of the commission of the unlawful act. This home needed to be HHS no later than 14 September 2022. This claim was filed on 27 May 2024, therefore in excess of the statutorily required 12 months.
Accordingly, the claim is dismissed.
The landlord has applied for suppression and as they were successful in defending their application, 3 I approve that.

Tenancy Tribunal case 4656272 — Healthy homes

At a glance

Tenancy Tribunal case 4656272 — Healthy homes

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions