What was Tenancy Tribunal case 4664569 about?

The tribunal order states: On 29 September 2023 the Tribunal made an interim name suppression order

How much money was awarded in case 4664569?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4664569?

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

Where can I read the official tribunal order for case 4664569?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10086098-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4664569 about?

The tribunal order states: On 29 September 2023 the Tribunal made an interim name suppression order

How much money was awarded in case 4664569?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4664569?

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

Where can I read the official tribunal order for case 4664569?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10086098-Tribunal_Order_Redacted.pdf.

268 Broadway, Stratford, Stratford 4332 Tenancy Tribunal Case 4664569 — Healthy homes

Claims and awards in Tenancy Tribunal application 4664569 — net $3,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond	$500.00	Bond
Exemplary damages: Roof	$300.00	Roof
Exemplary damages: Smoke alarms	$1,000.00	Smoke alarms
Exemplary damages: Healthy Homes Standards	$1,500.00	Healthy Homes Standards
Exemplary damages: Insurance and compliance statement	$300.00	Insurance and compliance statement
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,620.44
Total payable by Landlord to Tenant	$3,620.44

Claims and awards in Tenancy Tribunal application 4664569 — net $3,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond	$500.00	Bond
Exemplary damages: Roof	$300.00	Roof
Exemplary damages: Smoke alarms	$1,000.00	Smoke alarms
Exemplary damages: Healthy Homes Standards	$1,500.00	Healthy Homes Standards
Exemplary damages: Insurance and compliance statement	$300.00	Insurance and compliance statement
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,620.44
Total payable by Landlord to Tenant	$3,620.44

Order

On 29 September 2023 the Tribunal made an interim name suppression order suppressing the landlord and tenant’s names and identifying details. This order no longer stands and is revoked in relation to the Landlord’s details only. No name suppression order applies to the landlord.
The Tribunal orders suppression of the tenant’s name and identifying details.
Hospitality Slaves Limited must pay [The tenant/s] $3,620.44 immediately, as set out in the table below.
The tenant’s claim for exemplary damages for unlawful entry is dismissed.
The landlord’s claim for compensation for damage to the kitchen is dismissed.

Reasons

Both parties attended all the hearings in this matter which began with a jurisdiction hearing. Once jurisdiction was established I heard the substantive claims which took place over two separate days. [The tenant/s] was supported by a support person throughout. The landlord, a company, was represented by its director and shareholder, Ms Van Der Merwe.
The Tribunal must determine claims from both the landlord and the tenant.
Earlier orders dated 29 September 2023 and 13 December 2023 have been made in this case.
The tenancy began on 5 December 2022 and ended on 15 June 2023. The tenant paid $450.00 per week. The premises the tenant rented consisted of both an upstairs and downstairs area. The upstairs area is above a shop. The downstairs area is at the rear of the shop.
As explained at the hearing a party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. THE TENANT’S CLAIMS Failure to lodge the bond – Exemplary damages
[The tenant/s] claims exemplary damages on the basis that the landlord has breached s 19 of the Residential Tenancies Act 1986 (RTA), with respect to failing to lodge the bond with the Chief Executive (the Bond Centre).
[The tenant/s] says that her bond of $1,800 was not lodged with the Bond Centre at all. She says that her bond was paid on 25 November 2022 and she got it back a month after the tenancy ended.
Ms Van Der Merwe says that she did not know to lodge the bond as her husband used to manage the property but she says he had passed away. The Tribunal expresses its condolences to Ms Van Der Merwe in respect of her loss.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant. For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the s 19 requirements, is declared to be an unlawful act, and therefore may be the subject of an order of exemplary damages. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See s 19(2) and Schedule 1A, RTA.
The landlord did not lodge the bond within 23 working days. The landlord did not lodge the bond at all. I find it has committed an unlawful act.
I must therefore consider whether to award exemplary damages.
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 s 109(3) RTA.
Ms Van Der Merwe says she did not know to lodge the bond. However, landlords are required to operate their business within the legislative environment that governs their business and are assumed to know the law. If it were otherwise parties could escape the need to comply with the law simply by claiming ignorance of it. Landlords must have in place the necessary checks and balances to ensure such basic landlord responsibilities as filing bond money are met.
As noted in TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
I find that the breach was intentional. It is very important that landlords deposit the bond with the Bond Centre as it is not their money. The Bond Centre is a third party that holds the funds as a surety for end of tenant claims. It is in the public interest that a landlord complies with the requirements of the RTA and operates correct financial procedures to ensure that the tenants funds are protected.
I award the tenant exemplary damages of $500.00 in respect of this breach. Failure to maintain the roof – exemplary damages
Under s 45(1)(b) RTA a landlord must 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.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. A tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
[The tenant/s] says that the landlord failed to provide and maintain the premises (s 45(1)(b), RTA) because the landlord was aware the roof was leaking from the start of the tenancy. In support of this she referred to the tenancy agreement where the landlord has marked the need to repair the roof by ticking it in schedule 3 (at clause 10.1). [The tenant/s] says this showed that the landlord knew the roof needed fixing from the outset of the tenancy. [The tenant/s] says that Ms Van Der Merwe told her from the start that she was aware of it and that someone would come and fix it. [The tenant/s] also says that materials were bought by the landlord to fix the roof on 5 August 2022 (as shown by the invoice filed) so the landlord was aware of the issue prior to the start of the tenancy.
[The tenant/s] says that during the course of her tenancy on 21 April 2023 Ms Van Der Merwe told her by text that the roofers would be coming that Sunday and Monday. She says that there were a few leaks – in the kitchen, upstairs through a skylight and also downstairs by the door. The tenant says she would use buckets and towels. [The tenant/s] says it leaked any time it rained more than a drizzle. She says that she didn’t raise it with the landlord between the start of her tenancy and the time when the roofers came because the landlord already knew about it.
After the builders had been, on 3 May 2023 [The tenant/s] says Ms Van Der Merwe sent her text asking if there were still leaks to the roof. She responded that there was a leak by the front door and by the bathroom. [The tenant/s] says that the landlord took no steps to remedy this and there were no other discussions about it. A copy of this message was provided to the Tribunal.
The landlord provided a photograph that she says is of the roof before it was repaired. She says it was replaced before the tenancy began at the end of October 2022 and this is supported by an invoice and photographs.
The landlord says that the roofers needed to come back to fix a small dripping leak in the skylight and another leak in the back of the shower which ran down behind the wall to the ground floor to the back kitchen door. They came back towards the end of April 2023 and they had to come back from Hamilton and were busy. Ms Van Der Merwe says it did not rain much during that time. Ms Van Der Merwe says that when it started to rain she says she asked the roofers to come immediately. [The tenant/s] disputes that it did not rain much during this time. She says there was a lot of rain and a lot of leaks.
Ms Van Der Merwe says that after the tenancy ended she has lived in the property and there have been no leaks and the roofers have never been back. She does not accept that there were still leaks as reported by the tenant in her message sent in May.
There was no probative evidence to show me the extent of the leaking but the landlord does admit that there were two leaks from the start of the tenancy until the roofers returned from Hamilton in April. [The tenant/s] has therefore established that there was a leak during this period. In the absence of probative evidence, the tenant has not established that leaks remained after the roofers returned in April.
I find that in providing a property that was not weathertight, which was leaking, the landlord failed to maintain the premises until April 2023. I consider a period of two months to be reasonable timeframe to investigate and remedy such a leak. The landlord left the issue and did not remedy it for around four and a half months. I therefore find there has been a failure to maintain.
This is a breach under s 45, RTA. I find Hospitality Slaves Limited committed an unlawful act. I must consider exemplary damages.
I have set out the position above in relation to exemplary damages (paragraph 14) and do not repeat it here. I consider the breach to be intentional. The landlord clearly knew of the defect. The tenant was at the very least, inconvenienced by this defect having to catch dripping water and had it running between the floors. It is in the public interest that tenants have a warm and dry home. I take into account the fact that the problem was present during the summer months but nevertheless I accept that there would have still been rain.
I award the tenant exemplary damages of $300.00 in respect of this breach. Smoke alarm regulations – Exemplary damages
Section 45(1)(ba) RTA requires that a landlord comply with all regulations regarding smoke alarms. Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See s 45(1A) and Schedule 1A RTA.
The tenant says that the landlord did not comply with these obligations. She provided photographs of the ceilings at the property that did not have any smoke alarms pictured.
The landlord says there were smoke alarms. Ms Van Der Merwe provided evidence in the form of photographs that were taken after the end of the tenancy showing a number of alarms and a photograph of alarms in a packet. She also provided a receipt for alarms.
The alarms that Ms Van Der Merwe says were there are not on the ceilings or walls but they are simply placed on the top of cupboards/partition walls. The landlord also says that the tenant’s partner had returned a smoke alarm to her during the course of the tenancy because it kept beeping. Ms Van Der Merwe says she did not know where that alarm had come from, she didn’t look to replace it because she knew the other ones were there.
The tenant’s position is that she did not see any smoke alarms while she was living there. She says she had put things on top of the cupboards referred to by the landlord. She did not know anything about the smoke alarm Ms Van Der Merwe says was returned by her partner.
I am satisfied that the landlord has breached s 45(1)(ba) RTA. This is because there is no probative record of the alarms that were at the property at the start of the tenancy or at any point during the tenancy itself. There is also no record of any smoke alarms or testing them in the tenancy agreement or any other document. Even if I accept the landlord’s evidence that the tenant’s partner returned an alarm (meaning there must have been one alarm at the property for him to return) the landlord then did nothing to replace that alarm after its return, or to investigate where the alarm had come from.
In any event, even if I accept that the alarms as pictured by the landlord were at the property at the start of the tenancy then I would consider that there has still been a breach of s 45(1)(ba) RTA. This is because I note that on the packaging of the smoke alarms provided in evidence by the landlord it says “Easily installed - All mounting hardware included”. However, a very casual approach has been taken by the landlord as her evidence is that alarms were simply placed on the top of cabinets.
I am not satisfied that a scatter gun approach to putting smoke alarms throughout a premises like the landlord has done amounts to the required installation of smoke alarms as required by the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. This is important because not installing smoke alarms appropriately can lead to them not working sufficiently, or them being moved or, particularly if the tenant does not know they are there, being covered potentially hindering their operation.
This is a breach under s 45, RTA. I find the landlord committed an unlawful act. I must consider whether to award exemplary damages. The test is above (paragraph 14) so I do not repeat it here.
I consider that the breach was intentional. Having smoke alarms installed and having them installed correctly is essential in every home – arguably it is even more essential when the home may be more vulnerable to fire from other premises (such as the commercial premises which was below and adjoining the tenant’s downstairs space). Smoke alarms are life saving devices. It is very serious to take a lackadaisical approach to smoke alarms. It is in the public interest that they are both provided and installed correctly.
I award the tenant $1,000 in respect of this breach. Healthy Homes requirements – Exemplary damages
[The tenant/s] claims that the landlord has breached the landlord’s obligations under s 45(1)(bb) RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to: a. comply with the HHS heating standard; b. comply with the HHS ventilation standard; c. comply with the HHS moisture ingress standard; d. comply with the HHS insulation standard.
Compliance dates for the HHS vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
The tenancy began on 5 December 2022 and therefore the HHS apply to this tenancy.
The HHS require that premises have compliant ceiling and underfloor insulation, the main living room contains a qualifying heater capable of maintaining a temperature in that room of 18° Celsius, bathrooms and kitchens have extractor fans and other rooms have windows or doors opening to the outside, premises are free of unreasonable draughts, have an efficient drainage system for ground and roof water and an underfloor moisture barrier (if there is an enclosed subfloor). There are 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 s 45(1A). The heating standard
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, and that can be found at https://www.tenancy.govt.nz/heating-tool/. There are exemptions in specific circumstances.
The tenant says there was a heat pump but that it did not meet the minimum heating standard.
The landlord says the heat pump complies with HHS and provides a HHS report (HHS Report) stating that the property requires 5.3kw of heating and that a heat pump with a capacity of 5.85kw is installed. The report says that the property complies. The report was not undertaken until after the tenancy had ended.
The calculation in the report is shown as follows:
The landlord also provides an email from [Heating Services Company 1] that also sets out the measurements of the room and sets out the required minimum heating standard as being 5.45kw.
The landlord also provided a handwritten note that Ms Van Der Merwe says sets out a calculation by another person ([Heating Services Company 2]). The landlord says she thinks this was done in 2017. This note does not add much as the calculation is unexplained and basic. Ms Van Der Merwe says she doesn’t understand it.
The landlord provides a photograph of the heat pump with the heat output of 5850w.
[The tenant/s] says the heat pump does not meet the required minimum standard because the landlord, and its advisers have not accounted for the fact that the living room cannot be shut off from the remainder of the property. Only a curtain (which does not reach the top of the ceiling) covers the entrance to the living room which is directly from a staircase. That staircase also leads directly to a downstairs area which is open which includes a gap in the top of a wall that links to a commercial premises in the same building. The wall to the bathroom, leading directly off the living room, also has a significant space at the top meaning that the bathroom cannot be fully enclosed off from the living room.
I find that the tenant has established that the heat pump does not meet the minimum HHS and the landlord is in breach because: a. The evidence presented by the landlord does not sufficiently persuade me that the calculations undertaken in the HHS Report and the email of advice or the handwritten note have been undertaken in accordance with the requirements of the HHS. b. None of the calculations appear to have been done using the on-line calculator, or alternatively done in accordance with the formulae that industry experts can use for manual calculation that can be found in schedule 2 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019. This requires heat loss to be taken into account. Windows that can be observed from photographs of the living room and the skylight do not appear to have been taken into account. There is no suggestion, and no evidence to support a finding, that the landlord here may rely on Regulation 10A, HHS that sets out an alternative pathway to establishing the minimum heating standard. c. Further, the HHS for heating is that Landlords must provide one or more fixed heaters that can directly heat the ‘main living room’. The 'main living room' means the whole space a living-room heater must be able to heat. Importantly here this must include any connected spaces that cannot be closed off. I am not satisfied that the HHS Report or the email or the handwritten note take into account the fact that the living room cannot be shut off from other parts of the property. The photographs provided clearly establish and support the very open nature of the property (including a bathroom located by the kitchen where the partition wall does not meet the ceiling, a staircase leading to the downstairs area which has a wall that does not meet the ceiling leaving a significant gap to the downstairs shop). The curtain provided at the top of the stairs not sufficient. Only the measurements of four walls have been included in the calculation in the HHRS Report, it also refers to the premises as being only the upstairs apartment throughout. Therefore, the calculations undertaken cannot be correct.
Therefore, I find the landlord has committed an unlawful act. I must consider exemplary damages for this breach and this is done below. Ventilation standards
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
[The tenant/s] says the kitchen extractor was not ducted to the outside and just circulated within the room. The landlord did not deny that the kitchen did not have an extractor fan ducted to the outside. She says this was done shortly after the tenancy ended.
I find that there has been a breach of the ventilation standard.
Ms Van Der Merwe says both she and the tradesperson could not contact the tenant to get access to undertake this work but there was no probative evidence to support this. On the contrary evidence heard at other times during the hearing showed that the tenants were accommodating to the landlord’s requests for entry. In any event, a landlord can simply serve notice to gain access to undertake Healthy Homes compliance work.
I find the landlord committed an unlawful act. I have considered exemplary damages below. Insulation standard and moisture barrier
The moisture ingress and drainage standard includes a requirement that there is a ground moisture barrier when there is an enclosed subfloor space.
A subfloor space is enclosed if the airflow into and out of the space is significantly obstructed along at least 50% of the perimeter of the subfloor space by 1 or more of the following: (a) a masonry foundation wall: (b) cement boards, timber skirting, or other cladding: (c) other parts of the building or any adjoining structure: (d) any other permanent or semi-permanent structure that significantly obstructs airflow: (e) rock, soil, or other similar material.
The landlord’s obligations in respect of insulation are now ‘bundled up’ in the HHS, but the insulation requirement came into effect in 2019. Landlords must ensure that there is compliant underfloor and ceiling insulation in rental properties. There are exemptions if it is not reasonably possible to fit insulation in those areas due to the construction of the dwelling.
Where the premises were insulated before 1 July 2016 the underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition. Where underfloor insulation is installed after 1 July 2016 the minimum R-value for underfloor insulation is 1.3. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
The property the tenant rented has a ground floor and an upstairs area. Upstairs has a bathroom, a bedroom, kitchen and living room. Downstairs is a further kitchen and further living area. The tenant says that there is no underfloor insulation under the ground floor and no moisture barrier. There is a hatch in the kitchen allowing access to a floor space.
The landlord agrees and says there was no insulation in place.
The HHS Report incorrectly identifies that the property is compliant because the writer has failed to recognise (or has not been told) that the downstairs area forms part of the tenanted area. It simply states “the property is an upstairs apartment. Under floor insulation is not applicable.” This is incorrect.
I am satisfied the tenant has proven that there was no insulation under the ground floor. This is in breach of the HHS. I find the landlord committed an unlawful act. I have considered exemplary damages below.
The landlord agrees that there is no moisture barrier is in this space. She says it is not an enclosed subfloor space that requires a moisture barrier – it is exempt. She refers to the area having vents.
In relation to the ground moisture barrier The HHS Report states:
[The tenant/s] says it is not exempt and the area is an enclosed subfloor. She relies relied on photographs which show that the wall is made of concrete with small vents.
I am satisfied that the tenant has proven that there was no moisture barrier in an enclosed sub floor space and I am not satisfied that an exemption applies.
The HHS Report writer has incorrectly considered the entire premises to be upstairs in relation to both the insulation and moisture barrier. It is not clear on what basis the report writer actually considered the subfloor perimeter at all.
The photographic evidence presented shows a cement wall sub floor with small vents. I find it more likely than not that this is a sub floor space that should have a moisture barrier unless there is an exemption.
The focus of the HHS Report writer appears to have been the upstairs apartment rather than the ground floor. I have already found the report to be inaccurate in relation to the heating standard, and the insulation standard (as the writer focused on the upstairs only) therefore the report writer’s credibility to produce an accurate report is already severely weakened. I find that there is insufficient evidence within the report to support a finding that an exemption applies.
I am satisfied the tenant has proven the lack of a moisture barrier is a breach of the HHS. I find the landlord committed an unlawful act. I must therefore consider exemplary damages. I have considered exemplary damages for all of the breaches identified under s 45(1)(bb) below. Exemplary damages for HHS breaches - Heating, insulation, moisture barrier, ventilation
On the basis of the available evidence, I consider the landlord has intentionally breached the HHS heating requirements. While I accept that someone, provided heat pump calculations in 2017 the note does not show calculations being undertaken in order to comply with HHS. It is a very basic that the landlord could not explain. The information obtained from the other professionals was obtained after the tenancy had ended so the landlord could not have relied on these professional opinions. There is insufficient evidence to show that the landlord considered if the heat pump actually complied with the specific standards to comply with the HHS legislation.
It is important that all aspects of the heating standards are fully complied with. It should be noted that simply having a heat pump is not enough. It must be sufficient.
The effect is that the tenant has had a property that has been difficult to heat. However, I do accept that the relevant period was mainly during the summer months so heating would have been less important.
I consider that the landlord clearly knew there was no extraction fan in the kitchen and no underfloor insulation and no moisture barrier. I consider these to be intentional breaches.
[The tenant/s] says the home was damp and that she needed a healthy home for her disabled son. She says that the problems with the heating meant that there was a struggle for their family who did not have considerable disposable income and put a financial strain on them. [The tenant/s] says her youth and naivety was taken advantage of.
I accept that breaches would have meant that keeping the home warm and dry was more difficult than it should have been.
It is in the public interest that landlords comply with the HHS as these standards ensure a tenant has a sufficiently warm and dry home.
Here there are multiple breaches. I have also found other breaches of s45 above. On this basis I consider it fair to award the tenant $1,500 in exemplary damages as a result of these HHS breaches. Failure to provide statement of insurance or Healthy Homes Compliance Statement
Section 13A RTA relates to the content of tenancy agreements, and confirms that the agreement must set out a range of information including information about the insurance position.
Section 13A(2) RTA sets out: (2) The landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
The requirement to include or provide a Healthy Homes Compliance Statement with the tenancy agreement applies to new tenancy agreements commencing after 1 December 2020 and all written variations or renewals taking effect after 1 December 2020: s 13A(1CA) RTA.
Section 13A(1F)(a) confirms that failure to comply with s 13A(2) and s 13(1CA) is deemed to be an unlawful act, meaning exemplary damages can be ordered. The Tribunal may award exemplary damages up to a maximum amount of $750.00.
[The tenant/s] says she did not get a Healthy Homes Compliance Statement nor did she get a statement relating to the insurance position. The tenant says she was only given the document which is described as a lease.
Ms Van Der Merwe says she did provide this documentation to [The tenant/s] and provides a copy to the Tribunal. The copy provided is in the form of the Tenancy Services template and is signed dated 7 August 2022. Ms Van Der Merwe says when she was going though her file and paperwork she found the compliance document and the insurance document. Ms Van Der Merwe says that she gave it to the tenant with the ‘lease’.
[The tenant/s] says Ms Van Der Merwe said that she would not do the Healthy Homes because it would cost more. The landlord says that she meant that she would not engage a professional to undertake an assessment – rather she had done it herself.
On balance I find it more likely than not that the landlord did not provide the tenant with a copy of the Healthy Homes Compliance Statement or insurance statement.
I find this to be more likely than not because first, the landlord’s behaviour strongly indicates that it was trying to avoid a residential tenancy altogether. The written agreement between the parties is in the form of a commercial lease. It states the business purpose is Airbnb. This is considered in the Tribunal’s order dated 29 September 2023. I find it unlikely that an entity using a commercial lease, who considered that they had not established a residential tenancy, would include these forms with its commercial documentation.
The Healthy Homes Compliance statement produced is dated and signed on 7 August 2022. This is well before this tenancy began. Having a document on file and giving the document to the tenant are two different things.
Further, I also note that some of the wording in the landlord’s HHS Compliance Statement adopts the same incorrect wording as the HHS Report that was only undertaken after the tenancy had ended – For example, both refer to the premises being an upstairs apartment in relation to underfloor insulation so that it is not applicable. I find it unlikely that both the landlord and the HHS Report writer would have both independently made these errors.
Given the content of the Healthy Homes Compliance statement that was provided by Ms Van Der Merwe in the hearing [The tenant/s] could have, instead, bought a claim that the HHS Compliance statement provided false or misleading information (which I note attracts a higher maximum level of exemplary damages) but she was consistent in her position that the landlord had never provided this document.
I find that it is more likely than not that the landlord failed to provide a Healthy Homes Compliance Statement or insurance statement. I find it has committed an unlawful act.
I must consider exemplary damages. I find that the unlawful act was intentional. I refer to the remarks above, in particular TMT New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182, regarding the landlord being deemed to know the law.
The obligation to provide these documents are fundamental obligations on landlords and have been included in the RTA since 2016 and 2019 respectively.
In the case before me, the [The tenant/s] has been disadvantaged because she was not able to assess whether she was getting a warm, dry home from the outset of her tenancy. She was not aware that there was no insurance for the property. There is a strong interest for tenants, landlord, and the public generally, that tenancy agreements and their associated documents are provided and are robust and accurate. I consider would be just to make an order.
I consider that an order of $300.00 in exemplary damages would be reasonable. Unlawful entry
[The tenant/s] claims the landlord has entered the premises without consent or 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. See ss 48(1) and (2) RTA.
With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises to prospective tenants (s 48(3)(a), RTA).
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See s 48 (4)(a) and Schedule 1A RTA.
There are several instances relied upon: a. [The tenant/s] says that on 31 March 2023 Ms Van Der Merwe entered the property without notice and without consent. She says Ms Van Der Merwe entered to deal with carpets which had got wet due to a burst pipe (the facts of which are referred to further in the landlord’s claim below). [The tenant/s] says she heard the landlord trying to call her on her telephone from outside the property. [The tenant/s] says she did not answer because it was her day off and she wanted a break with her family. Ms Van Der Merwe then left a voice mail, which the tenant heard her leaving, and told her she was going in. Ms Van Der Merwe then entered the downstairs part of the building. b. [The tenant/s] says that on 25 April 2023 Ms Van Der Merwe sent her a text message saying she was at the back door and wanted entry to access a hatch leading to under the house to clean out some items including wood which were being put in a skip. [The tenant/s] says her partner let Ms Van Der Merwe in. c. [The tenant/s] also referred to other occasions when Ms Van Der Merwe would knock on her door or call her many times in a row asking to be let in. She was unable to be more specific. d. [The tenant/s] says that on 5 June 2023 the tenant had agreed for the landlord to show a new tenant the property. A text message exchange shows Ms Van Der Merwe saying to [The tenant/s]: “[Redacted] will come to look at the flat 2pm today. I cant come with have ill children here to look after”. The tenant replied “Do you expect [Tenant’s partner] to show him around then?”. Ms Van Der Merwe responds: “Yes please” “If he don’t mind” “Just don’t want to take ill kids to your place” “He will be there now”. [The tenant/s] says that was the end of the exchange. The landlord agreed with these facts.
Ms Van Der Merwe says on 31 March 2023 she had to get into the premises to deal with a carpet which she agreed was wet due to a flood. She says it was a crisis to get the carpet dry. She wanted to ensure that the carpet didn’t stretch as it was drying on crates.
Ms Van Der Merwe says on 25 April 2023 she had sent a text about wanting to get rid of wood that was under the premises to stop mice and rats. She says that the tenant’s partner let her in and she was not there for long.
In relation to the general allegations Ms Van Der Merwe says she never entered without calling or knocking and having permission.
I find that the tenant agreed, via her partner, to let the landlord in on 25 April 2023 and therefore there was no unlawful entry. I find that the tenant also consented to letting ‘[Redacted]’ in to view the property and so there was no unlawful entry on that date. There is not enough evidence to support the generic allegation and therefore this cannot succeed as the basis for a claim for unlawful entry.
The position on 31 March 2023 requires further analysis.
I am satisfied that the landlord let herself in and did not give notice on this occasion. In this case, there was no consent by the tenant (or her partner) to enter the premises at the time or immediately before the time of entry. The issue therefore is whether the repair was an “emergency” in which case the landlord could enter at any time, or whether it was “necessary repairs or maintenance” in which case the landlord is required to give 24 hours’ notice to the tenant.
The flood initially happened on 23 March 2023 and the alleged breach involved the landlord entering the property a week after the flooding to check on how the carpets were drying. The landlord says that she entered to check the carpet because she was concerned the carpet would stretch given that it had been lifted onto a crate.
On the basis of the evidence, I am not satisfied that this was an emergency situation. I take the view that an ‘emergency’ in accordance with s 48(2)(a) RTA takes its natural meaning of being a sudden serious and dangerous event or situation which needs immediate action to deal with it.
While it may have been a stressful time, given that the entry was a week after the flood, on the basis of the evidence before me (which suggested no necessity to check on the carpet as frequently as hourly or daily or anything in- between) I see no reason why the landlord could not have given 24-hour notice as required s 48(2)(d), RTA. I do not consider the position to have been an emergency.
The landlord has committed an unlawful act. I must therefore consider exemplary damages.
I decline to award exemplary damages here because I accept the landlord’s evidence that she was just trying to avoid further damage. She had tried to call the tenant and left a voicemail to tell her what she was doing. I accept Ms Van Der Merwe considered there to be a genuine crisis. I accept that potential damage needed to be contained and managed. Therefore, although this was an unlawful act, I do not consider this is an appropriate case for exemplary damages to be awarded. In this particular instance, I find the breach was not done in bad faith. I accept that the landlord (in terms of checking the carpet) was just trying to limit damage to the property.
The tenant’s claim for exemplary damages for unlawful entry is dismissed. THE LANDLORD’S CLAIM
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA. Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
A landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. The tribunal must consider depreciation, taking into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The landlord seeks $3,500 from the tenant for damage done to the downstairs kitchen due to water damage.
Ms Van Der Merwe says that the tenant allowed rubbish to accumulate outside including nappies and that there was a big pile. Ms Van Der Merwe says it was still there at the end of the tenancy. Ms Van Der Merwe says this caused rats or mice to enter the property and chew through the tenant’s washing machine hose. She says that during the course of the tenancy this caused a flood in the kitchen which then caused kitchen units made of MDF to expand. The landlord has not yet replaced the kitchen. Ms Van Der Merwe also referred to a delay in the tenant shutting off the water.
The landlord has no ingoing property inspection report or photographs to record the condition of the kitchen at the start of the tenancy. Ms Van Der Merwe says the kitchen was installed in 2017 and it was in good condition previously but there is no probative evidence of this.
[The tenant/s] says that the vermin were not as a result of her actions. She says that she left no rubbish left on the ground and that the landlord has no photographic evidence. However, I note that this evidence, put forward in the second face to face hearing, contrasts to the position taken at the first face to face hearing (when dealing with the claim for unlawful entry) where [The tenant/s] referred to her rubbish bins not being taken and her saying: “which is why we had rubbish piling up”.
The tenant says the landlord had rubbish stored under the kitchen. There is no dispute that items under the kitchen were removed after the flood and put in a skip although the landlord says this was not rubbish but was wood. There is no probative evidence showing what exactly was removed by the landlord.
[The tenant/s] also refers to the fact that the premises are in the very centre of Stratford just a few shops away from Stratford’s well known clock tower.
[The tenant/s] says that there is a takeaway right next door to her that is open long hours and is smelly and that there is another fast food place just the other side of the clock tower as well. Photographs were provided of the area. [The tenant/s] also referred to the fact that there are also public toilets to the rear of the premises and, like most towns, there are a lot of fast food places in the area. She says that the vermin are as a result of this. The landlord disputes this.
[The tenant/s] says she did all she could about the water leak. Her partner heard it happen because he was up very early for work. They then tried to use towels to contain the water. [The tenant/s] says she was freaking out and she did not know how to turn off the water as she had never been shown how to do that. She provided phone records showing that she had first tried to contact her mother and step father at 4.46am about the leak. She says she tried to call them first because it was so early - she felt more comfortable calling them for help first. The log shows her calling Ms Van Der Merwe just after that at
54am.
The washing machine hose was damaged by vermin again a couple of weeks later but no damage was done on that occasion as the tenant knew what to do to stop the water and was there when it happened. The landlord replaced the washing machine pipe the first time the flood occurred but told the tenant she had to replace it after the second occasion.
It is not disputed that vermin chewed the washing machine pipe and that this then flooded the kitchen leading to damage. But I must carefully consider if the tenant is liable for this damage.
For reasons set out below, I find that the landlord has not sufficiently proven that the tenant is responsible for the flood damage to the kitchen.
Given how the damage occurred I must consider the legal concepts of causation and remoteness.
Causation refers to the direct relationship between the actions of a party (the tenant) and the resulting harm or damage. Causation considers whether the tenant’s actions (or failure to act) were the cause-in-fact of the landlord’s harm (the damage). A "but-for" test is commonly used to determine causation.
Causation in this context focuses on establishing a direct link between the conduct of the tenant and the harm suffered by the landlord.
Remoteness, on the other hand, deals with the legal principle that limits the scope of liability by considering, in this context, whether the harm suffered by the landlord was too remote from the tenant’s actions. In other words, even if the tenant’s conduct was a cause-in-fact of the harm, the law may still limit liability if the harm was too far removed or unforeseeable from their actions. Remoteness addresses the question of whether it is fair and just to hold the tenant liable for the harm, considering the circumstances and foreseeability of the harm.
First, I have considered if there is a sufficiently direct causal link between the actions of [The tenant/s] (or someone whose actions she is responsible for) and the damage.
Inherent in causation of damage is that an applicant (here the landlord) has to show that, but for the breach, it would not have suffered the loss in whole or in part. In other words, would the damage have happened if the tenant had not engaged in the conduct that is alleged to have caused or contributed to the damage?
I find that the tenant acted reasonably promptly when turning off the water. I have no reason to doubt her evidence that her and her partner were freaking out and throwing towels at the problem while she telephoned for help. The landlord was telephoned promptly.
I accept the landlord’s position that the tenant had rubbish outside. She referred to this herself at the first face to face hearing. However, significantly, I accept that the property is in the middle of the high street close to food outlets and a public toilet. The activities of any and many of the properties in the vicinity are just as likely to have attracted vermin to the area. The landlord also had items stored under the kitchen floor. The tenant said this was rubbish, the landlord said it was wood - either way it could also have attracted vermin with a place to nest. The landlord said that the vermin came up from under the kitchen floor.
Ultimately, evaluating the evidence and the circumstances of the case and applying the "but-for" test on the balance of probabilities I find that it is not more likely than not that the tenant’s actions were the cause of the damage.
The application is therefore dismissed.
Even if I am wrong in this, I also find that the application fails on the basis that the loss is also too remote.
If the damage to a property is caused by an unforeseeable event or circumstance that the tenant could not have reasonably anticipated or prevented, then the damage can also be too remote from the tenant's actions to make the tenant liable.
On the basis of the evidence presented I consider that the damage caused was not a foreseeable event. On the basis of the evidence presented, I do not consider that the tenant would have foreseen that vermin would enter the property and then bite through her washing machine pipe in the early hours of the morning causing flooding and the damage done.
Even if I am wrong in this, at best I would have only awarded the landlord nominal compensation, if any, here because (a) I am not satisfied that the landlord has established the loss it has claimed. Only quotes have been provided and I am not sufficiently satisfied what remedial work will actually be done or how much it will cost; (b) there is no probative evidence of the condition of the kitchen at the start of the tenancy. Both of these evidential gaps mean that the Tribunal would have to guess the landlord’s loss. The Tribunal does not guess but makes decisions based on evidence.
Finally, had it been necessary I would have also considered the impact of the tenant not having notification that there was no insurance at the property on the landlord’s claim. The damage is the type of damage that would usually be covered by insurance where it is in place. Here there was no insurance and I have found the tenant was not notified of this in breach of the RTA. Incorrect information relating to insurance excess has impacted on awards made in other Tribunal decisions (see Tenant v Philpot and Philpot [2021] NZTT 4295509, 4296039). I do not need to consider this now as the claim has been dismissed on other grounds.
The landlord’s application is dismissed.

COSTS

The landlord raised the fact that it has incurred legal costs to prepare for this claim. The landlord has failed in its own application and failed in the majority of the claims bought by the tenant. The legal representative did not attend the hearing.
Section 102 RTA deals with costs. The Tribunal has the power to make an award of costs where a party was represented by counsel.
Here the landlord was not represented by counsel she says she has just consulted with counsel. This means that the Tribunal has no power to award costs. In any event, the landlord has been largely unsuccessful and therefore I would not have made an award for costs.
The tenant has been substantially successful and therefore I award her the filing fee.

SUPPRESSION

Both parties sought suppression.
Under s95A(1) RTA a suppression order must be granted on the application of a party that has wholly or substantially succeeded in the proceedings.
I previously made an interim suppression order because it was not possible to know who the successful party would be.
In the present case the tenant has been substantially successful and therefore I grant the tenant continued and final name suppression.
The landlord was not substantially successful. I have considered if I should grant a name suppression order having regard to the interests of the parties and public interest under s 95A(4), RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue I need to consider is whether suppressing the landlord’s name outweighs the interest of the open justice reporting principle.
In my view, the landlord’s application for name suppression should to be declined for the following reasons: a. It is common for a party appearing before the Tribunal to seek a suppression order but that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the parties and the public interest, the public interest outweighs the landlord’s interest.
Accordingly, the landlord’s application for suppression is declined and the interim name suppression that was granted in my order of 29 September 2023 is revoked in respect of the landlord.

Tenancy Tribunal case 4664569 — Healthy homes at 268 Broadway, Stratford, Stratford 4332

At a glance

Tenancy Tribunal case 4664569 — Healthy homes at 268 Broadway, Stratford, Stratford 4332

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

COSTS

SUPPRESSION

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Residential Tenancies Act sections

Key findings

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Award balance

Claims & awards

Dismissed claims

Order

Reasons

COSTS

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions