What was the outcome of Tenancy Tribunal case 4656570?

The tribunal order states: Chin-hung Hsu must pay Xukun Ji the sum of $5,299.78 immediately as

How much money was awarded in case 4656570?

Cleaning: $800.00 awarded to tenant; Compensation: $1,074.24 awarded to tenant; Compensation: $3,425.54 awarded to tenant

What type of tenancy dispute was case 4656570?

The primary dispute was Leaks. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4656570?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10246275-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4656570?

The tribunal order states: Chin-hung Hsu must pay Xukun Ji the sum of $5,299.78 immediately as

How much money was awarded in case 4656570?

Cleaning: $800.00 awarded to tenant; Compensation: $1,074.24 awarded to tenant; Compensation: $3,425.54 awarded to tenant

What type of tenancy dispute was case 4656570?

The primary dispute was Leaks. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4656570?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10246275-Tribunal_Order.pdf.

94B Victoria Road, St Kilda, Dunedin 9012 Tenancy Tribunal Case 4656570 — Leaks

Claims and awards in Tenancy Tribunal application 4656570 — net $5,299.78 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for 2023 leak to 28 May 2023	$1,074.24	Compensation for 2023 leak to 28 May 2023
Compensation for 2023 leak to 6 December 2023	$3,425.54	Compensation for 2023 leak to 6 December 2023
Compensation for cleaning, drying carpet and general inconvenience	$800.00	Compensation for cleaning, drying carpet and general inconvenience
Net award	$5,299.78
Total payable by Landlord to Tenant	$5,299.78

Claims and awards in Tenancy Tribunal application 4656570 — net $5,299.78 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for 2023 leak to 28 May 2023	$1,074.24	Compensation for 2023 leak to 28 May 2023
Compensation for 2023 leak to 6 December 2023	$3,425.54	Compensation for 2023 leak to 6 December 2023
Compensation for cleaning, drying carpet and general inconvenience	$800.00	Compensation for cleaning, drying carpet and general inconvenience
Net award	$5,299.78
Total payable by Landlord to Tenant	$5,299.78

Order

Chin-hung Hsu must pay Xukun Ji the sum of $5,299.78 immediately as calculated in the table below:

Reasons

Both parties attended the hearing. The tenant appeared with a support person. The landlord was represented by Counsel, Ms Lyon, who appeared by phone from Palmerston North.
This claim concerns the lease of a dwelling and attached shop, trading as a dairy.
The tenant had initially filed a claim seeking compensation of $14,436.37 together with work orders for failure by the landlord to comply with their obligations to maintain the premises and comply with Healthy Homes Standards for heating.
A preliminary hearing was heard to determine the issue of jurisdiction. In a decision dated 2 November 2023 Adjudicator Wilson determined that the Residential Tenancies Act 1986 (“RTA”) applies to this tenancy and that the Tribunal therefore has jurisdiction to hear and determine the tenant’s application.
The tenant had in the interim updated his claim to seek compensation of $17,466.00 plus $10,000 for compensation for stress.
Prior to the hearing today the tenant updated his claim to seek compensation of $44,429.00 together with $900 additional compensation for cleaning, plus solicitor’s costs and exemplary damages in the sum of $24,700 as follows: a. Landlord failing to ensure tenancy agreement includes certain information (section 13A(1AAA) - $750) b. Landlord failing to comply with section 13A(1F)(a) - $750) c. Landlord failing to repair and maintain (section 45(1)(a) - $7,200) d. Landlord failing to provide health home information (section 45(1AD)(a) - $750); e. Landlord giving retaliatory notice of termination (section 54(3) - $6,500); f. Landlord acting to terminate tenancy without grounds (section 60AA - $6,500).
The landlord did not file their own application but sought relief under the section 24(1) of the Contract and Commercial Law Act 2017 on the basis that the landlord had entered into terms in a commercial lease in the mistaken belief the RTA did not apply. Onus and evidence
This is the tenant’s claim and so the onus is on the tenant to prove their claim to the civil standard (on the balance of probabilities).
For the sake of brevity I have not referred to all of the submissions made at the hearing and evidence both given and produced at the hearing, but the parties should be assured that I have carefully considered all of the submissions and evidence in reaching my decision. Background
The property is a fairly typical suburban dairy with associated accommodation, built in the 1920’s.
The shop on the street frontage is connected to dwelling. The dwelling includes four bedrooms, an office, open plan kitchen/dining/living and a bathroom. Two of the bedrooms have historically, and are currently, being used as storage for the shop.
The photos produced in evidence show the property to be fairly original and tired condition, although the bathroom has been updated at some stage.
The tenant entered into a Deed of Lease with the previous owner of the property commencing 28 May 2013 (“Lease”). The rental was $8,840 for the shop and $11,960 for the house.
The landlord purchased the property in 2014.
The tenant lived in the dwelling with his wife and family until approximately 2018. He said that the dwelling was old and tired and not suitable for their two children who were frequently unwell and that he was concerned about security issues. The family shifted to another property and have remained there since. From 2018 the tenant said that a friend lived there for approximately a year (using a separate entrance) and that until 2022 he would also stay there intermittently for convenience and for security reasons.
The tenant explained that he was forced to move out permanently in August 2022 and could not stay overnight because of leaks which are discussed below.
The tenant filed this claim on 15 August 2023.
The tenant then gave formal notice exercising his right of renewal under the Lease and requested a renewal document on 25 August 2023. A Deed of Renewal of Lease was executed on 18 October 2023 (“Deed of Renewal”). It provides that the renewal date means 28 May 2021 and the term being 4 years. In relation to rent and payments the Deed of Renewal records: a. From 28 May 2021 to 27 May 2023 $2,244.09 plus GST per month, with the annual rent being: i. The shop $12,356.82 plus GST; and ii. The dwelling $14,572.22 including GST (if any). b. From 28 May 2023 to 27 May 2025 $2,558.26 plus GST per month, with the annual rent being: i. The shop $14,086.70 plus GST; and ii. The dwelling $16,612.33 including GST (if any).
On 4 January 2024 the tenant served the landlord with a 14-day notice advising the landlord that they were in breach of their obligation to maintain the premises and asking them to remedy the breach by fixing the hole in the ceiling and replacing the mouldy carpet.
No work orders are required because the hole in the ceiling has now been repaired and the carpet has been replaced. The hearing proceeded to hear the tenant’s claims for compensation and exemplary damages.

Has the landlord failed to maintain the premises in a reasonable state of repair?

The tenant claims that the landlord has breached their obligation to maintain the premises.
Section 45 states: 45Landlord’s responsibilities (1)The landlord shall – ... (b)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;
A leak in the dwelling first appeared in July 2022, together with leaks in the shop.
I have reviewed the correspondence and evidence regarding these leaks in 2022 and am satisfied that the landlord acted appropriately. The landlords were notified on 26 July 2022 and a roofer attended on 29 July 2022 and conducted work on 10 August 2022. The tenant notified the landlord on 11 August 2022 that the roof was still leaking and the landlord then engaged a builder recommended by the tenant, who fixed the roof on 16 August 2022.
However there was then a further leak on 21 March 2023 which was more troublesome. The landlord consulted roofers but it was not until May 2023 that they received a quote for repairs and although the quote was accepted promptly repairs had still not been undertaken by July 2023 (it seems due to the unavailability of the roofer and then issues with obtaining scaffolding).
The tenant explained that after a period of particularly heavy rain, on 26 July 2023 he heard a bang and went through into the lounge to find that part of the ceiling had fallen down. The tenant produced photos which show a portion of the ceiling missing, exposed beams and pink batts which appear to be soaked through, water around the plaster, and debris on the floor.
The tenant produced messages with the landlord regarding the leaks. My impression from reviewing those messages is one of growing frustration by tenant as the leaks remain unresolved through July and August 2023.
Ultimately the property was re-roofed and this was completed and signed off on 7 December 2023.
I accept that part of the delay was caused because the landlord could not find a contractor to do the works earlier, but the fact remains that the tenant did not have full use of the property until repairs were completed. In my view the tenant is entitled to compensation for loss of amenity.
The tenant has sought various reductions in rent as described earlier.
I was referred to a report from Tay & Tay Valuers dated 26 September 2023 which states that 39% of the non-shop area was unusable due to leaks.
The landlord states that the portion of unusable portion of the property as stated is too high as the leaks only occurred when it rained. I accept that the leaks were intermittent but the tenant had to put up with the constant threat of leaks and damp and mouldy carpet during this period, which would have made it difficult to use the lounge room (which in fact had been used as a bedroom) and would have had the effect of making the property generally damp.
The landlord says that the rental reflects the age and condition of the premises and produced evidence showing that the rental is at the lower end of market rates to reflect that condition. I accept that evidence but the rental was payable for a property free from leaks and this was not the case.
I have therefore ordered compensation to the tenant at 39% of the rent for the dwellinghouse for that period. This amounts to $1,074.24 to 28 May 2023 (69 days at $39.92 x 39%) and $3,425.54 to 6 December 2023 (193 days @ $45.51 x 39%).
I also consider that the tenant is entitled to a further award for cleaning and drying carpet and for the inconvenience of having numerous contractors attending. It is not always easy to be precise when calculating such compensation but, standing back and looking at the situation as a whole, I consider that compensation of $800.00 to be appropriate.
I do not consider that the tenant is entitled to compensation for rates and insurance as these amounts are unrelated to the leaks. I do not consider that there is any basis for an award of penalty interest.
The tenant also seeks exemplary damages. A breach by the landlord of the obligation to maintain 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.
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.
In my view it is not appropriate to award exemplary damages. The purpose of exemplary damages is to punish and deter. Although there was considerable delay in effecting repairs I do not consider that there was any intention by the landlord to breach their obligations that would warrant an award of exemplary damages.

Has the landlord failed to comply with the Healthy Homes hearing standards?

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The tenant claims that the landlord has failed to comply with the HHS heating standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
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.
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.
The landlord says that: a. The Deed of Renewal provides that the start date of the renewed lease is 28 May 2021 and so the relevant date for compliance with the Healthy Homes standards is 1 July 2025; or (alternatively) b. That even if the renewal date had been 18 October 2023 (the date the Deed of Renewal was signed) the compliance date would have been 14 February 2024 (12 days from the renewal); and c. The property does in fact comply as there is a fixed heater into the living room of an acceptable type and which meets the minimum heating capacity completed by 6 February 2024.
I have reviewed the evidence and find that the landlord has in fact complied with the heating standard. I note that an initial email dated 29 February 2024 indicates that the 7.2kW heat pump installed at the property is below the required 7.3kW heating capacity, a more detailed report both parties have obtained different reports in this regard (which is common when it comes to such reports) but I note that a more comprehensive assessment dated 12 March 2023 found that the heating is compliant.
However even if I had not found that the landlord had met the heating standard I consider that the compliance does not come into effect until 1 July 2025, given the commencement date of the Deed of Renewal.
This claim is not proven. Is the tenant entitled to compensation or exemplary damages for various further alleged breaches?
The tenant has amended his claim once jurisdiction was established to claim for exemplary damages for various further breaches of the RTA.
Section 109 of the RTA provides that a tenant may apply to the Tribunal for an order that the landlord pay exemplary damages up to a maximum amount specified in Schedule 1A. The maximum amounts are rarely ordered unless there have been particularly egregious (or repeated) breaches by a landlord.
Section 109(2) however further provides that an application for exemplary damages cannot be made more than 12 months after the date of the commission of the unlawful act.
In addition, where a person genuinely believes that the tenancy does not fall within the RTA they cannot have intentionally breached the RTA 1 .
I note that the landlord has made careful submissions in respect of each further alleged breach for which exemplary damages are sought. However I do not consider that I need to determine whether any further breaches have in fact occurred because in my view, the further alleged breaches not already caught by the time limit in section 109 RTA cannot succeed as the landlord cannot have had the required intention for any award of exemplary damages to be made.
The landlord will however have to be mindful going forward to ensure compliance with the RTA.

Is the landlord entitled to relief?

The finding that the RTA applies to the dwellinghouse imposes very few additional obligations on the landlord. Clause 11.1 of the Lease provides that the landlord shall maintain the building in weatherproof condition.
The landlord appeared to have recognised that the Healthy Homes Standards would likely apply to the dwellinghouse as they began taking steps to comply as early as 2018 by arranging for insulation to be installed.
The compliance date for the Healthy Homes standards for this tenancy is 1 July 2025. The lease has been renewed to 27 May 2025 and so the parties will be 1 Egmont Eco Leisure Park v Cavanagh [2021] NZDC 21896 and Cavanagh v Egmont Eco Leisure Park [2022] NZHC 3601. able to consider any additional obligations on the landlord when negotiating a renewal or a new lease from that date. Filing fee and name suppression
The tenant has had some success, but not nearly to the extent claimed and so I do not consider that it is appropriate to refund the filing fee.
Neither party is entitled to and order for name suppression.

Tenancy Tribunal case 4656570 — Leaks at 94B Victoria Road, St Kilda, Dunedin 9012

At a glance

Tenancy Tribunal case 4656570 — Leaks at 94B Victoria Road, St Kilda, Dunedin 9012

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to maintain the premises in a reasonable state of repair?

Has the landlord failed to comply with the Healthy Homes hearing standards?

Is the landlord entitled to relief?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to maintain the premises in a reasonable state of repair?

Has the landlord failed to comply with the Healthy Homes hearing standards?

Is the landlord entitled to relief?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions