Published tribunal order
Tenancy Tribunal case 4657089 — Smoke alarms at ORDER
Decided 24 Jan 2024 · Published 24 Jan 2024 · Application 4657089
- Smoke alarms
Party names are redacted in the official published order.
Order
- The Bond Centre must pay the bond of $3,200.00 ([Bond number suppressed]) to [The tenant/s], immediately.
- must pay immediately, LandlordTenant Rent arrears$2,957.14 Compensation: rent abatement$10,400.00 Water rates$120.00 Missing smoke alarms$100.00 Lawns and Garden work$250.00 interfere with smoke alarms$500.00 Total award$3,427.14$10,400.00 Net award$6,972.86 Bond$3,200.00 Total payable by Landlord to Tenant$6,972.86
- The tenant is the substantively successful party and the Tribunal Orders suppression of his identifying details.
Reasons
- Both parties attended the hearing. Rent abatement
- The premises were badly affected by flooding in January 2023, to the extent that the whole of the downstairs area comprising 2 bedrooms bathroom and garage we're effectively unable to be used. In terms of section 59(4) the rent should have abated accordingly. 3The tenant proposed an abatement of $400.00 per week starting 27 January 2023, against a total rent payable for the premises of $900.00 per week. The landlord did not dispute the extent of the abatement requested but required the tenant to continue paying for rent until he had made a successful claim against his loss of rents insurance. The landlord refused to allow any abatement until his insurance claim was settled.
- The tenancy ended on 28 July 2023. The tenant continued to pay full rent until 8 July. Having had no confirmation by then from the landlord as to the rent compensation, the tenant stopped paying rent. It is not disputed that the tenant owes rent for the period 9 July 2023 to 30 July 2023.
- The landlord's evidence is that his claim for loss of rents insurance was declined but then, he says, he did receive a payment. For reasons he was not able to satisfactorily explain, the landlord was not in a position at the hearing to confirm the amount of the insurance payment received.
- The landlord does confirm that his claim was made on the basis of a $400.00 per week rent abatement. On the evidence provided I am satisfied that the tenant is entitled to abatement of the rent at $400.00 per week for the period from 27 January 2023 to the end of the tenancy. Bond
- The bond has remained held in the Bond Centre and should be returned to the tenant. Landlord's claims Water rates
- It is not disputed that the tenant has not paid for the last installment of water rates. The landlord has made a claim based on the estimated water use for previous periods but did not do a final reading.
- I am satisfied that the amount claimed by the landlord is likely to closely represent the cost of water used at the premises by the tenant which has not been paid for but I have revised the compensation awarded downward a little to ensure the tenant is not overcharge when the landlord should have done an actual reading. Smoke Alarms
- 9.The tenant does not dispute removing smoke alarms in the downstairs of the premises. He says that they were beeping, indicating a need to replace the batteries but that they were taken down around the time of the flooding and in the stress of dealing with those events and their aftermath he simply overlooked reinstating them.
- The landlord is entitled to be reimbursed the cost of replacing the smoke alarms although the amount he claims as compensation is excessive. I award reasonable compensation for their replacement.
- The landlord claims that an award of exemplary damages should be made against the tenant for removing the smoke alarms.
- A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) Residential Tenancies Act 1986. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.
- The tenant intentionally removed the alarms and in doing so 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.
- 16.There is no doubt that the tenant should have replaced the alarms. The evidence persuades me that in normal circumstances the tenant would have done so but at the time was dealing with major stresses caused by the flooding of his home. The landlord himself was compounding the stress by wrongfully refusing to allow any abatement of the rent respite it being clear that the tenants use and enjoyment of the premises was being severely compromised through no fault of the tenants. In those circumstances I consider it would be unjust for the landlord to benefit from an award of exemplary damages against the tenant.
- 17.The landlord has filed a claim for cleaning costs but that claim is not supported by sufficient evidence showing breach of the tenants obligation to leave the premises reasonably clean and tidy or of the actual loss caused to the landlord.
- 18.The landlord also claims compensation for lawn/ garden word which he says was necessary as a result of the tenant breach of his obligation to leave them reasonably tidy.
- 19.Again, the landlord's evidence is somewhat sparse. He has provided a quote for the work but in his evidence confirms that quote was not accepted, and work was done by other persons. It seems clear that some of the work was to meet the landlord's obligations, in terms of trimming trees and larger growths that were outside the tenant's responsibilities. It also seems to me quite clear from the evidence that some of the work was to reinstate the grounds after work for the landlord’s benefit to improve drainage and to re landscape the grounds.
- 20.The photographic evidence provided does satisfy me that in some respects the tenant did not meet his obligation to keep the lawns and gardens reasonably clean and tidy and that as a result the landlord will have paid for some work that the tenant ought to have done. That is very much less than the amount claimed by the landlord, but a modest compensatory award is warranted.
- 21.Both parties have had claims upheld and no award is made in respect of the filing fee.