What was Tenancy Tribunal case 4661193 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 4661193?

Compensation: $335.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4661193?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4661193?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9408705-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4661193 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 4661193?

Compensation: $335.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4661193?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4661193?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9408705-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4661193 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4661193 — net $2,855.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breach of duty to maintain the fireplace	$2,500.00	Breach of duty to maintain the fireplace
Compensation	$335.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,855.44
Total payable by Landlord to Tenant	$2,855.44

Claims and awards in Tenancy Tribunal application 4661193 — net $2,855.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breach of duty to maintain the fireplace	$2,500.00	Breach of duty to maintain the fireplace
Compensation	$335.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,855.44
Total payable by Landlord to Tenant	$2,855.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Cara Mansfield and David Mansfield must pay [The tenant/s] $2,855.44 immediately, calculated as shown in table below:
The landlord must carry out the following work to the premises: a. Have the oven repaired again by a qualified person and this must be completed by 22 September 2023. b. If the oven cannot be repaired it must be replaced within two weeks of any assessment that the oven cannot be repaired. c. Have an independent business complete a Healthy Homes Standards assessment of the tenancy premises and this must be completed by 13 October 2023 and a copy given to the tenant. d. Carry out draught stopping and this must be completed by 20 September 2023.
All other claims are dismissed.

Reasons

Both parties attended the hearing. This tenancy started on 2 May 2023. The firebox in the lounge caught fire within days of the tenant moving in. Soon after the owner stopped the contract with the property manager and took over the management of the tenancy premises. The landlord commenced a major structural repair under the house on 26 June which took around almost five weeks to complete. This was noisy and disruptive, and the builders needed access to the inside of the house as well as to the underfloor space. The tenant wants a work order because the oven is not working properly despite a repair. She is also concerned the house does not meet the Healthy Homes Standards. Both the landlord and the tenant are concerned that the other has breached the rights for access set out in the Residential Tenancies Act 1986 (RTA). The questions I have to decide are: • Was there a breach of the duty to maintain and repair the firebox? • Should the tenant get additional compensation because of the structural work? • Did the landlord breach the duty to repair the oven? • Does the house meet the Healthy Homes Standards (HHS)? • Did the landlord breach the duty to provide information about the HHS? • Have the landlord or the tenant breached the right to enter the house? • Has the landlord harassed the tenant?

Was there a breach of the duty to maintain and repair the firebox?

It is agreed evidence the firebox caught fire in May. The tenant called the fire brigade. The landlord was advised the next day that the firebox was not safe to be used. At the hearing the landlord could not produce any evidence about when the firebox had been serviced and the chimney swept. Under section 45 RTA a landlord must provide and maintain the premises in a reasonable state of repair. 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 RTA.
It is essential that fireplaces in a tenancy premises are properly maintained to keep the house and the tenants safe. The landlord has not proved the firebox was maintained. 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) RTA.
The landlord/owners had a property manager at the time, but this application has been made against the landlord/owners. I find I can make orders against the landlord/owners because they are the landlord currently, and they were named on the tenancy agreement. The landlord should have had a clear idea about who was responsible for arranging cleaning. I find the landlord should have made enquiries about maintaining the firebox and the chimney sweeping, and not doing so was an intentional act. The effect for the tenant was stress, and she still wonders what would have happened if she had been asleep when the smoke moved through the house. It is in tenants’ interests that chimneys are swept every year and fireplaces are checked for safety at the same time. There is clear public interest in tenants living in safe houses.
I allow exemplary damages in the amount of $2500. This is at the lower end of the scale because I am not aware of any similar orders against the landlord.
The claim for smoke alarm breaches was withdrawn at the hearing.

Should the tenant get additional compensation because of the structural work?

The tenant claims the landlord harassed her by carrying out major structural work under the house. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See s 38(2) RTA.
The landlord gave notice and said the work would take a couple of days, but in fact it took almost five weeks. The tenant said the work needed loud tools, and there were vibrations throughout the house. The workers had to have access to the inside of the house as well and sometimes they forgot to lock up when they left for the day. She submitted she was at home most days and the disruption was huge. She also said that had she been properly informed about the scale of the work she would have gone to stay somewhere else.
The landlord submitted the work was years in the planning and it was impossible to coordinate the builder and the structural engineer for the work to be done before the tenancy started. The landlord was very worried about the effect on the tenant and the delays. The landlord compensated the tenant by not charging rent for two weeks. The tenant is not sure if this is sufficient compensation.
I have read the documents provided in support of the claim. I find another $335 to be reasonable compensation in the circumstances because the work took almost five weeks, and half the rent each of those weeks seems reasonable compensation for the level of disruption to the tenant.

Did the landlord breach the duty to repair the oven?

The tenant has applied for a work order because she is worried the oven is not safe to use. Under section 45(1)(a) - (ca) RTA the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements. Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
The landlord is aware of the issue. They got a repair done by an appliance repair business and the work has an electrical safety certificate certifying the oven is safe to use. I find the landlord has complied with its duty to repair under the RTA.
Since this repair was done the tenant has tried to use the oven. She said the oven seals still sag when the oven is hot, and the oven itself became so hot she burnt her finger. She has also found that one of the control knobs is broken and that bake is the only cooking option.
At the hearing the parties agreed to a work order for the oven. Does the house meet the Healthy Homes Standards (HHS)?
The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019. The compliance date for this tenancy was 120 days after the start of the tenancy, which means the last day for compliance was 29 August 2023.
The tenant considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard. The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. This standard requires a ground moisture barrier when there is an enclosed subfloor space.
The tenant submitted photos showing water pooling on the ground after rain. The landlord is aware of the problem and thinks planting will improve drainage., but this has not been done yet.
The landlord explained that there is no room for a ground moisture barrier under the three rooms at the bottom of the house. This space cannot be insulated either. However, a new underfloor space has been created by the repair work and I am not able to ascertain from the evidence whether this is a space that should have a ground moisture barrier.
The tenant also considers that the landlord has failed to comply with the draught stopping standard, which requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The tenant has identified draughts from a ventilation system, from a hole under the cook top and from somewhere behind the dishwasher. The landlord is happy to carry out draught stopping.
Given the particular issues raised by the tenant, and the lack of clarity around the ground moisture barrier, I have made an order that the landlord has an independent person complete an HHS assessment of the tenancy premises. A copy should be provided to the tenant when it is completed.
The tenant raised concerns about the HHS information in the tenancy agreement. Under s 13A(1CA) RTA landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations. The Tribunal can award exemplary damages for any breach.
I have read the HHS statement in the tenancy agreement, and the additional information provided by the landlord at the hearing. While I accept parts of the HHS statement in the tenancy agreement have not been completed fully, I am not persuaded there has been enough of a breach to warrant a penalty against the landlord. The ground moisture barrier is a new issue since the tenancy started, and it is usual for draught stopping to be carried out during a tenancy if the tenant finds new draughts.
The tenants did ask the landlord to supply the records or other documents that relate to the landlords’ compliance with the HHS within 21 days after receiving the request. The tenant requested these documents on 23 August and the 21 days has not yet run its course. Additional HHS information was provided to the tenant at the hearing, and I have ordered an independent assessment, with a copy to the tenant. I find there is no beach by the landlord under section 45(1AC) RTA.
I find the tenant has not proved the claims for breaches of the HHS and these claims are dismissed.

Have the landlord or the tenant breached the right to enter the house?

The tenant claims the landlord has entered the premises without consent or proper notice. A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. There is a reciprocal obligation on tenants to allow access. See section 48(1) and (2) RTA.
The tenant is mostly concerned that the landlord has been coming to the house with the person repairing the oven. The tenant submitted this was an unnecessary intrusion, especially since she had already provided photos and videos showing her concerns. The tenant asked the landlord not to come but they did anyway. The landlord submitted it was easier to come with the electrician and see the issues and the possible solutions first hand. They were also concerned that the tenant would not allow the electrician access because she wants a replacement oven rather than a repair.
I do not find there was any breach by the landlord here. Proper notice had been given for the repair and the owner is entitled to be present when repairs are carried out. Even though the tenant had asked the landlord not to come, she consented to their entry on the day.
The landlord claimed the tenant was not allowing them access for maintenance and repairs, and that the times she allowed for access by tradespeople was unhelpfully restrictive. The tenant replied that it was not her intention to deny access, but she was concerned after all of the work done since she moved in to keep some control over when people enter the house. To date, the tenant has always allowed access.
The RTA allows landlords who have given 24 hours’ notice for repairs and maintenance to enter the tenancy premises at any time between 8am and 7pm on any day of the week. Often access is by consent, but there is no legal requirement that the landlord and the tenant have to agree to a time. The landlord was especially concerned that someone look at the roof and the times the tenant suggested were not suitable for tradespeople. I find the landlord can arrange access to have the roof checked and let the tenant know when they will be arriving, after giving the notice required by the RTA.
I find there have been no breaches by the landlord or the tenant of section 48 and these claims are dismissed.

Has the landlord harassed the tenant?

The tenant claims the landlord has breached her quiet enjoyment of the tenancy premises and she has asked for exemplary damages. In particular this claim relates to the landlord coming to the house with the tradespeople after the tenant told them not to come.
The law says that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 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. See section 38(2), (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).
I do not find there has been harassment because I have not found any breach of the right to enter under section 48 RTA. However, as this tenancy is continuing, I note that all landlords need to balance their rights to enter, maintain and repair with tenants’ rights to reasonable peace, comfort and privacy.
I also note that I consider the compensation paid by the landlord and ordered by me to be adequate recompense for any breach of quiet enjoyment during the structural repair process. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
Both parties made applications for suppression. The tenant’s application is allowed because the tenant is the most successful party. The landlord’s application is not allowed because there is public interest in the names when there are breaches of the RTA.

Tenancy Tribunal case 4661193 — Exemplary damages

At a glance

Tenancy Tribunal case 4661193 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was there a breach of the duty to maintain and repair the firebox?

Should the tenant get additional compensation because of the structural work?

Did the landlord breach the duty to repair the oven?

Have the landlord or the tenant breached the right to enter the house?

Has the landlord harassed the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was there a breach of the duty to maintain and repair the firebox?

Should the tenant get additional compensation because of the structural work?

Did the landlord breach the duty to repair the oven?

Have the landlord or the tenant breached the right to enter the house?

Has the landlord harassed the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions