What was Tenancy Tribunal case 4667069 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 4667069?

____________________________________…: $300.00 awarded to tenant; Compensation: Ceiling height- breach…: $500.00 awarded to tenant; Compensation: Failure to maintain- f…: $104.29 awarded to tenant; Compensation: Failure to maintain- h…: $804.20 awarded to tenant; Compensation: Failure to maintain- k…: $1,148.57 awarded to tenant; Compensation: Failure to maintain- l…: $2,871.42 awarded to tenant; Compensation: Failure to provide the…: $375.00 awarded to tenant; Smoke Alarms: $200.00 awarded to tenant; Compensation: Overpaid rent post unl…: $248.57 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $2,166.66 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4667069?

The primary dispute was Exemplary damages. Related themes: State of repair, Leaks, Smoke alarms.

Where can I read the official tribunal order for case 4667069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12083817-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4667069 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 4667069?

____________________________________…: $300.00 awarded to tenant; Compensation: Ceiling height- breach…: $500.00 awarded to tenant; Compensation: Failure to maintain- f…: $104.29 awarded to tenant; Compensation: Failure to maintain- h…: $804.20 awarded to tenant; Compensation: Failure to maintain- k…: $1,148.57 awarded to tenant; Compensation: Failure to maintain- l…: $2,871.42 awarded to tenant; Compensation: Failure to provide the…: $375.00 awarded to tenant; Smoke Alarms: $200.00 awarded to tenant; Compensation: Overpaid rent post unl…: $248.57 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $2,166.66 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4667069?

The primary dispute was Exemplary damages. Related themes: State of repair, Leaks, Smoke alarms.

Where can I read the official tribunal order for case 4667069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12083817-Tribunal_Order_Redacted.pdf.

139B Waipuna Road East, Mount Wellington, Auckland Tenancy Tribunal Case 4667069 — Exemplary damages

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139B Waipuna Road East, Mount Wellington, Auckland Tenancy Tribunal Case 4667069 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4667069 — net $10,345.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain- hot water	$804.20	Failure to maintain- hot water
Compensation: Failure to maintain- leaks	$2,871.42	Failure to maintain- leaks
Compensation: Failure to maintain- kitchen power points	$1,148.57	Failure to maintain- kitchen power points
Compensation: Failure to maintain- fittings	$104.29	Failure to maintain- fittings
Compensation: No smoke alarm at start of tenancy	$200.00	No smoke alarm at start of tenancy
Compensation: Ceiling height- breach of s45(1)(c) of the RTA and s10 of HIR	$500.00	Ceiling height- breach of s45(1)(c) of the RTA and s10 of HIR
Exemplary damages: s45(1) of the RTA breach	$500.00	s45(1) of the RTA breach
Compensation: Overpaid rent post unlawful rent increase	$248.57	Overpaid rent post unlawful rent increase
Exemplary damages: Bond not paid to bond centre	$750.00	Bond not paid to bond centre
Exemplary damages: Failure to keep proper business records	$350.00	Failure to keep proper business records
Compensation: Failure to provide the statutorily required information in the tenancy agreement	$375.00	Failure to provide the statutorily required information in the tenancy agreement
Exemplary damages: Retaliatory notice	$2,166.66	342. I am satisfied it would be just to require the landlord to pay $2,166.66 in exemplary damages (one third of the maximum penalty available) because: a.
Filing fee reimbursement	$27.00	Filing fee reimbursement
__________________________________________________________________________________ 46670692 Compensation: Reimbursement	$300.00	__________________________________________________________________________________ 46670692 Compensation: Reimbursement
Net award	$10,345.71
Total payable by Landlord to Tenant	$10,345.71

Claims and awards for application 4667069 — net $10,345.71 NZD. Verify on MoJ.

Compensation: Failure to maintain- hot water

Amount: $804.20
Awarded to: Tenant
Reason: Failure to maintain- hot water

Compensation: Failure to maintain- leaks

Amount: $2,871.42
Awarded to: Tenant
Reason: Failure to maintain- leaks

Compensation: Failure to maintain- kitchen power points

Amount: $1,148.57
Awarded to: Tenant
Reason: Failure to maintain- kitchen power points

Compensation: Failure to maintain- fittings

Amount: $104.29
Awarded to: Tenant
Reason: Failure to maintain- fittings

Compensation: No smoke alarm at start of tenancy

Amount: $200.00
Awarded to: Tenant

Claim types — money lines allowed on this order

Compensation Replace Smoke Alarms Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Gaynor Frances Elmore must pay [The tenant] $10,345.71 immediately, calculated as shown in table below:

Reasons

Adjudicator Setefano determined in her 8 March 2024 Order that the Tribunal had jurisdiction to hear the tenant’s substantive claims.
Both parties attended the hearings with me on 13 June 2024, 2 October 2024, 13 December 2024, 12 and 13 March 2025.
It is of note that on 13 June 2024 all the tenant’s substantive claims were identified and recorded in the 14 June 2024 Order. During this hearing the parties were informed that the Tribunal had no jurisdiction to hear the assault claim.
The tenant applied for refund of the bond and reimbursement of the filing fee as well as compensation, general damages, and exemplary damages for: a. Failure to maintain the premise in a reasonable state of repair (s45(1)(b) of the RTA); b. Failure to comply with the healthy homes’ standards (s45(1)(bb) of the RTA); c. Failure to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises (s45(1)(c) of the RTA and breaches of the Housing Improvement Regulations 1947; d. Failing to lodge the bond within the statutory 23 days or to provide a receipt for the bond in breach of ss19(1)(a) and (b) of the RTA; e. Breach of the tenant’s privacy and quiet enjoyment of the property s 38 of the RTA); f. Failure to keep business records, in accordance with s 30 of the RTA; g. Failure to provide insurance information in the tenancy agreement (s13A (2) of the RTA) h. Interference with the supply of internet services to the premises, other than as a necessary interference to avoid danger to any person or to enable maintenance or repairs to be carried out (s45(2) of the RTA); i. The landlord unreasonably refusing the tenant’s request to make minor modifications to the premises and/or a fixture, renovation, alteration, or addition (s42A and 42B of the RTA); j. Unlawful termination of the tenancy (s51(2)(f) of the RTA), and the termination notice not complying with the requirements set out in s45(3) of the RTA; k. Retaliatory notice (s54 of the RTA; and l. Unlawful residential premises (s78A of the RTA). Background
The tenancy commenced on 4 December 2021 and ended on 19 August 2023.
The tenant rented a furnished studio that is connected to the main house, and it has two separate entrances, front and back. There is no connecting internal door.
The studio has a lounge/bedroom and kitchenette that contains a washing machine and a sink, but no cooking facilities.
The property also has a sleep out and a garage.
Adjudicator Setefano held, in her Order dated 8 March 2024, the Tribunal has jurisdiction to hear the tenant’s claims as the studio was legally found to be a separate household.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. TENANT’S CLAIMS Has the landlord breached its section 45(1)(b), (bb) and (c) obligations to the tenant?
[The tenant/s] claims that the landlord has breached their obligations under section 45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”).
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].
Section 45(1)(c) of the RTA requires a landlord to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Breaching either of these s45(1) 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 Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to maintain
The tenant gave evidence the landlord failed to investigate and repair defects with the property brought to her attention, within a timeframe that is reasonable in all the circumstances. A. Hot water
The tenant confirmed, the issue with the lack of hot water started on 11 December 2021, approximately a week after his tenancy commenced. He confirmed that initially there was an irregular flow of hot water (it ran cold after a few minutes and never really got hot). The tenant thought it was to do with a switch near the washing machine and put up with the issue without complaint.
On 11 August 2022, the shower began to run cold for longer periods of time, so the tenant emailed the landlord about the issue. He followed this email up verbally on 13 August 2022 as he was aware the landlord had difficulty in using email.
The landlord promised to get a plumber to investigate the issue the week of 15 August 2022. On 26 August 2022, the landlord informed the tenant the plumber had COVID-19. The tenant informed her that the issue required a gas technician and not a plumber as the issue was not a plumbing issue.
On 5 September 2022, the tenant raised the issue again. By this time, he was having cold showers all the time.
On 9 September 2022, the tenant states the landlord was gardening outside when she said to him, in a mocking tone, “a gas technician came but you weren't home so he went away again”. She also suggested he “boil a jug” for hot water. The landlord confirmed she had told the tenant to “boil the jug” for his dishes.
The tenant says he was getting fed up with the landlord’s lack of action, so he researched the nature of the problem. He found two reliable sources of information on the Mobil and Elgas websites that told him the current Rinnai Infinity 22 hot water system, that ran on a 9kg barbeque LPG tank was not fit for purpose as it could vaporise the gas to heat hot water during the colder weather. On the advice of Elgas the tenant confirmed he improvised by placing the BBQ gas tank in a large metal bucket filled with boiled hot water to warm up the liquid gas and make it vapor. This worked for short periods of time, up to an hour, but as soon as the water in the bucket cooled the hot water stopped working the shower. The landlord considered this work around to be dangerous, but the tenant had advice that it was safe and it allowed him to access hot water in the house for up to an hour.
On 13 September 2022 the tenant texted the landlord to inform her he still had no hot water without his work around.
On 19 September 2022 a Collins Gas and Plumbing Technician arrived unannounced at the premise to check the hot water system. This contractor informed the landlord the system is “not functional, too old, and not compliant”. The landlord was not happy with this advice as it meant she would have to upgrade the hot water system, so she took advice from her brother, an electrical engineer, who stated the gas and plumbing technician was wrong and that all the system required was a new regulator. When the tenant conveyed his concerns about this not being a solution to the issue, the landlord stated the tenant should be “grateful to have a place so cheaply” and the tenant responded that he was sick and tired of living in a substandard dwelling with her broken promises and lack of action and wanted the issues with the hot water system remediated fully. Later that evening, when the tenant returned home, he found a new regulator had been installed by the landlord’s brother but there was still no hot water. He texted the landlord to inform her the regulator had not fixed the issue, and she responded that he had not been home for her brother to test it.
The next day the tenant took time off work to be at home to allow the landlord’s brother to test the hot water system with the new regulator and he confirmed it did not work. He was puzzled, saying ”It goes and then it shuts down, it lights up then switches off - it must be the sensor”. The tenant reminded him the Collins technician and two other people had said the system was not fit for purpose in any way and needed upgrading. The landlord’s brother remonstrated, saying “They all say that! Its been working for ten years! I run my motorhome off one”. The tenant says the brother accepted that when it gets cold his 9kg LPG tank doesn’t produce hot water either. He accepted the system was old and initially confirmed to the tenant a gas technician would fix it between 2pm and 5pm the next day. The tenant arranged to take time off work the next day to be there to test the new system after it was installed. Then the landlord’s brother informed the tenant the “gas guy was not coming to repair it now as it was too old to repair and would need to replace the whole system”.
The following Monday 26 September 8.30am the landlord confirmed two 45kgs gas bottles would “be delivered that morning”. That afternoon, the same Collins Gas & Plumbing technician fitted the new system and again confirmed that the previous system “was not compliant”. The hot water worked from there on with no further issues. The landlord also confirmed she now “had a Certificate of Compliance” for the hot water and that after her husband had died, she didn't know she was supposed to have one. It puzzled the tenant why the landlord’s brother had not given her better advice if he was a qualified tradesperson.
The landlord stated that the plumber took a while to come due to illness and so her brother stepped in to try and help resolve the hot water issues. The evidence suggests otherwise. It appears the landlord’s brother got involved to try to save her money after the initial investigation work had been done by the Collins Gas and Plumbing Technician. The landlord’s brother’s involvement delayed the resolution of the hot water issue significantly.
I am satisfied the tenant first made the landlord aware he had no hot water on 11 August 2022. A month later, on 9 September 2022, the landlord arranged for a gas and plumbing technician to investigate the issue, but did not tell the tenant or arrange for the tenant to be home to let the technician in. Consequently, the contractor was unable to investigate or remediate the issue. The gas and plumbing technician arrived on 19 September 2022, again unannounced, investigated and found the system “not functional, too old, and not compliant” and recommended it be replaced. The landlord ignored his advice and as a result it took until 26 September 2022 for a new functional and compliant hot water system to be installed that finally gave the tenant access to hot water as he required it for showers and the like.
I find the landlord failed to investigate and remediate the hot water issue in a reasonable time frame in all the circumstances and that the tenant should receive a rent rebate of $100.00 per week for the period of 6 weeks and 4 days (11 August 2022 to 26 September 2022) he has suffered the loss of amenity, stress and inconvenience of not having access to hot water for his showers and dishes etc, being a rent rebate of $804.20
I do not find that this breach was an intentional unlawful act for which exemplary damages and general damages should be awarded. B. Rodents
The tenant says that at first there were mice entering the dwelling. He notified the landlord and purchased a mouse trap. Then rats entered the premise, so he purchased a rat trap. He says the traps proved ineffective as the rats were breeding and that he could hear them at night gnawing on the woodwork, plaster and possibly wires and moving around the dwelling. He stated that the rodents got into his food so he had to ensure things like oats were stored in a secure way that did not allow the rodents to get into the food. He says he asked the landlord to engage a professional rodent exterminator and she told him it was “not worth doing” as “all houses have rats” and they “come up from the river”. He then asked for a professional bait trap outside his dwelling and again the landlord refused this request, saying it was dangerous for dogs and cats. The tenant says he felt helpless as he had to leave the window above his desk and the ranch slider open to try to get an air-flow into the house as the mould in the house and dead air made it difficult for the tenant to breathe. This allowed the rats to enter the house while he was sleeping.
He says he woke at night to the loud crack of the rat trap, which usually did not kill them, and, as close as a meter from his head (because by that stage he was storing food in the wardrobe in his sleeping area as the kitchen area was quarantined due to the mould spores there) He stated he heard and observed a rat doing a dance of death. This happened several times and added to the horror and depression he felt staying in this dwelling.
The Healthy Homes Inspector, Tally Jones, made a note in her report that the landlord was making light of the rat situation and not taking steps to address it.
On 4 June 2022, the tenant texted the landlord about the rats. He informed her that he had purchased a rat trap box and she reimbursed him for the cost of the rat trap.
On 7 June 2023, Tally Jones and the tenant met with the landlord and discussed the list of issues Ms Jones had identified that required addressing. On this list was a request to address the rat issue.
On 8 June 2023, the tenant says he provided the landlord with a list of issues for resolution and item 12 on the list includes rodents being an issue and requests a professional exterminator to lay bait stations and poison not able to hurt domestic animals.
The landlord denies receiving the tenants list of issues for resolution, dated 8 June 2023 (which is a 28-day notice to remedy) or that he raised these issues with her in person on 7 June 2023. The tenant has produced a statement from Tally Jones, who was present at the meeting and saw the notice being handed to the landlord.
On 15 June 2023, the landlord confirmed that the tenant purchased rat poison and deducted it from the rent.
The landlord says that because the tenant was addressing the problem and she had not seen any evidence of the rats she did not investigate this further.
The tenant says he trapped 6 rats but never showed them to the landlord and had taken photographs and a video the rats but had lost these as they were on his I phone 6 which died last year due to a screen malfunction and the tenant hadn't saved copies.
The landlord says she and her ex-husband have never seen or had any issues with rats on the property and that Kevin, who lives in the main house with her ex- husband says he never had any issues with rats or mice. The landlord lives in the house next door a few metres away and says she has no issues with rats and mice.
I find that the tenant has not provided sufficient evidence to prove this claim on the balance of probabilities and dismiss it accordingly. C. Dampness and mould
The tenant gave evidence that when he first moved in the landlord told him the place flooded. He provided photographs that show that the premise also flooded a number of times during the tenancy.
The tenant says the landlord knew the premise flooded but did nothing to prevent further flooding occurring and as a result he had to live in a cold, damp and mouldy environment that led to coughing, aching teeth, a sore on his leg, itching, headaches and brain fog. He says his doctor confirmed these symptoms were all consistent with toxic mould poisoning and that sporotrichosis caused the sore that developed on his leg. He also stated that his dogs, that stayed with him sometimes, developed coughs they had never had before the tenancy or after it as the place was so cold and damp all the time. Leak 1 Kitchen
The tenant claims that from the first winter he was in the premise (May to July 2022) he discovered mould in the kitchen, near the north wall. He says he raised this issue with the landlord by text message and orally when he saw her around the property. The landlord denies the tenant ever raised the mould issue in the kitchen with her.
The tenant says there were bad smells in the cupboards at the end of the kitchenette, that he raised with the landlord each time he saw her in the yard, and that he informed her he was constantly using exit mould to try and keep the mould from developing further. He says the landlord told him it was just an old place.
The tenant produced photographs that show the cupboard under the kitchen sink was damp, mouldy and would not close properly. The tenant also produced photographs that showed he had tried to cover the mouldy areas in the kitchen with plastic sheets and wore a mask to stop being affected by the black mould in 2022, a year before he moved out. He says he developed respiratory issues and rashes on his arms and legs from the mould and thought the segregation of the mouldy areas of the dwelling from the non-mouldy areas may help him to protect his health and wellbeing. He says the landlord laughed at this strategy and made it clear she had noticed he had erected the plastic sheeting and considered the tenant strange for doing this. This view was reiterated to me by the landlord and her ex-husband’s statements made during the hearings. I note that the tenant has produced his medical records that prove he made numerous trips to his GP between 22 September 2022 to 17 April 2023 because of the mould related health issues he was suffering.
The tenant produced photographs of flooding in the kitchen, taken on 12 July 2022. The tenant claims the landlord told him the flooding was caused by a soak pit issue that she says was resolved. The tenant says the flooding in the kitchen persisted throughout his tenancy and was listed on the 28-day notice for improvements provided to the landlord, orally on 7 and in writing on 8 June 2023. The tenant says the water seepage was coming from the north wall as well as from under the floor.
The tenant produced several photographs of black mould on the particle board under the sink, beside the sink, and inside the kitchen cupboards dated 14 September 2022, 9 October 2022, and 15 October 2022.
When the landlord did nothing to address the mould and damp particle board, the tenant put tape on the kitchen cupboard to try to keep t the mould from under the sink spreading into the house as the particle board at back of the cupboard was damp and soft to the touch. The tenant also produced photographs that showed pieces of particle board that came off in porridge like clumps when the tenant tried to clean the mould off the particle board with a damp cloth and mould treatment such as exit mould.
Around 15 October 2022 the tenant filled a hole under the sink and some gaps around pipes coming into the kitchen with foam as the tenant was tired of these gaps letting cold damp air into the house and he thought this might help reduce the dampness causing the mould issue. The mould persisted because of a leaky kitchen tap that at this stage neither party were aware of. Leak 2 sleeping area
The tenant produced phone records that proved he rang the landlord when there was flooding in his sleeping area on 18 August 2022, during some heavy rain. He says that when the rain ceased the flooding went away but left a strong faecal smell. The tenant stated he asked the landlord if there was a drain nearby that was blocked that could be causing the wastewater smell and she said no. The landlord took no steps to dry the sleeping area out, and so the tenant says he dried this out himself with a dehumidifier, but the faecal smell persisted.
The tenant also showed a photograph taken in late October 2022 that shows the tenant’s clothing and camera equipment covered in mould as there was also dampness on the north wall by his wardrobe/storage area.
The tenant also noted the north wall of the premise had guttering that overflowed and caused dampness on the inside of the wall. He produced a photograph of this dated 6 April 2023. The landlord confirmed that she had engaged a handyman to look at the roof some time in 2022 after the tenant complained of leaks and overflowing guttering and he had suggested an additional flashing be installed. The tenant confirmed that this flashing was installed about a month after he complained of leak in sleeping area that wet his duvet and bed (south wall) and that the flashing stopped the sleeping area leak but not the leak causing the damp north wall. The tenant says the south wall where bedroom area was had a leak before flashing put in and had rough edge and was hard to clean. Faecal smell came from front door area (ranch slider) came from right corner .
In Tally Jones 14 April 2023 report, she noted that the foliage around the north wall needed to be cut back to let more sunlight in and to stop moisture and drainage issues. The photographs the tenant produced showed smaller trees/shrubs and foliage on that north wall that were not cut back and that limited the sunlight coming into the premise. These photographs also show the north wall was in a dug-out area next to the driveway and the premise was at the base of a hill. The tenant says that because of these factors he was always concerned about seepage into his dwelling from drainage coming from further up the hill.
The tenant also produced evidence that shows the mould and dampness issues around the kitchen and wardrobe areas resulted in a power point on the north wall and another power point near the north wall blowing out.
The landlord produced a large illegible invoice, dated 11 May 2021, from the tree person that she says had done work on the property. The landlord says she engaged this contractor to trim all the trees and mulch them around the property and trim the puriri trees are down the side of the driveway.
A statement from another tenant, Kevin Puleiafa, dated 29 April 2024, says he lived on the property at the time and had no dampness issues. The landlord did confirm that Mr Puleiafa’s flat was close to the tenant’s but did not share the same north wall.
The landlord’s ex-husband, Wayne Elmore, also gave evidence that his flat is right next to the tenant’s, and he had no mould issues. Further, he says the whole time the tenant was there he did not air the place out and that was what had created the mould as no prior flatmates had any mould issues.
Mr Elmore also stated the tenant put plastic covering over the windows as soon as he moved in and that stopped all light and getting in which contributed to the build-up of mould. Additionally, she showed a photograph the new wardrobe she purchased and installed at the start of the tenant’s tenancy that shows it was clean and dry.
The landlord stated that the tenant never reported the leak or the water on the floor in kitchen or in the sleeping area and he never let her into the house or took her to see the mould. In contrast the landlord also gave conflicting evidence that a month after the tenant raised the issue of the leak in his bedroom, that had soaked his bed and duvet, she put up flashing above the south wall. The tenant says the flashing stopped sleeping area leak but the mouldy wardrobe area near the north wall was being created by a different leak.
The tenant accepts he mostly raised the leak issues orally and not in writing. He also points out that the landlord gave evidence that as soon as she put a new tap in the kitchen the water pooling on the floor stopped. This means she was aware that there were constant leaks in the kitchen and had she had them investigated earlier, the issue could have been resolved but instead the tenant lived with the constant mould and dampness. Further, that it is reasonably foreseeable that where there has been an ongoing leak from a kitchen tap down the back of the wall and into the cupboard below that mould would grow.
The landlord and her ex-husband stated during the hearing that “the tenant should have asked to move out if there were issues with the property” and “there had been no mould issues since the tenant moved out”. I find these statements to be dismissive and they fail to address the fact that the leak has been found and fixed since the tenant moved out and that the landlord has an obligation to provide and maintain the premise in a reasonable state of repair in all the circumstances and it did not. The tenant also confirmed that on a number of occasions Mr Elsmore said “if you don’t like the place you could piss off”.
In Ms Jones 14 April 2023 report she confirms seeing black mould throughout the premise and that it was wet and damp. She also notes that the tenant has discussed the issues with the property that do not meet healthy homes standards but that “he feels by doing so it has damaged the relationship, and feels under threat of becoming homeless if he pushes the matter further while still dwelling at the property”. Her 7 June 2023 healthy homes assessment also confirms the same issues were present. Bathroom
The tenant says the main issue was the north wall in the bathroom and he was concerned that he was being exposed to black mould spores in the steam when he was showering as there was mould in shower box in the silicone seal and behind the basin. Photographs dated 18 October 2022 shows yellow, white and black mould present on the plaster wall in bathroom and between the wall and skirting boards.
Mould was also growing on the wall of the bathroom, above the basin on the right, because of the leaks in the kitchen. The tenant confirmed the mould had continued to grow under the kitchen benchtop, under the sink and in the corner of the kitchen cabinetry.
The tenant produced invoices for products he used to try and clean/kill the mould and asked the landlord for reimbursement of the costs to clean the mould. He stated it was a losing battle.
He says he raised the ongoing mould and dampness issues a number of times with the landlord and can confirm he did so at the same time as he was addressing the hot water and the power point issues. He said the landlord’s response was “maybe you should not be living here”.
On questioning, the landlord says that “if there was mould a normal person would not be wiping it off and not let it grow but would call the landlord to see it”. Further she said “mould is mould isn’t it... If you mop every day and keep it nice and clean you wouldn’t have mould”... “It smelt like a dog kennel as he never cleaned”...“he never ventilated the place that is why it was mouldy”...“the door to the bathroom had not been cleaned for a year”... the tenant “had so much stuff in there no one could work” and “if you don’t clean you get mould and if you get mould you clean it". The landlord clearly blamed the tenant for the significant level of dampness and mould that had developed in the premise without ever fully investigating the issue to confirm whether this was the cause or whether there was indeed a leak/leaks causing the mould to grow.
The landlord also told the Tribunal that her grandson said, “don’t worry, give him notice and I will help you do the work”. She also stated he sent a text message say stop all work on 19 July 2023 and asked that she only undertake essential maintenance. She claimed she didn’t know what essential maintenance was and what she and the tenant considered essential might be different.
I am satisfied the landlord did not take steps to get the leaks and mould issues investigated, quoted or repaired in a reasonable timeframe in all the circumstances and consequently the tenant lived in cold, damp and mouldy conditions for much of his tenancy. The main source of the dampness appears to have been a leaky kitchen tap that remained illusive to both parties until after the tenant moved out but would have been found much earlier if the landlord had investigated the dampness and mould issues when they were first raised. Lack of extractor fans in the kitchen and bathroom added to the issues as did drainage issues.
I find the tenant should receive a rent rebate for the period he lived with the loss of amenity from the various leaks and dampness and mould in the kitchen, bathroom and sleeping areas. I find it fair and reasonable for the tenant to receive a rent rebate of $50.00 per week for the period 12 July 2022 to 18 August 2023 (57 weeks and 3 days). being a rent rebate of $2,871.42 ordered.
I am satisfied it would also be just to require the landlord to pay a sum in exemplary damages because: a. The tenant has lived for 57 weeks and 3 days with a loss of amenity stress and inconvenience caused by the various leaks and resulting mould and damage to his belongings when the landlord knew of these issues and did not take reasonable steps to investigate and remedy them; b. The tenant suffered the stress and inconvenience associated with having to repeatedly follow the landlord up and remind her of her obligations under the RTA to no avail ; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity for 57 weeks and 3 days; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.
The first two leak claims first occurred prior to 13 September 2022, so I the tenant is statutorily barred from claiming exemplary damages for these two breaches. However, the third claim (bathroom) first occurred in October 2022, so is not barred by s109(2)(b) of the RTA which places a limit on the Tribunal’s jurisdiction to award exemplary damage for any breach where that application is made more than 12 months after the date of commission of the unlawful act.
The issue of the quantum of exemplary damages for the bathroom related breach will be addressed at the end of the s45(1) of the RTA breaches section of this Order. D. Interior and exterior wall to the kitchen
The tenant confirmed he pulled out some of the tiles behind the kitchen tap and this showed wet framing behind the wall from a leak and showed a video of this leak and the water damage behind the tiles.
The tenant says the landlord chastised him for doing this and said he should have raised his concerns with her and let her have the issue investigated. The tenant says he raised the leaks in the kitchen with her so many times and she had done nothing to have it investigated or remediated. As such, he thought that if he had concrete proof to show her that she may stop downplaying his concerns about the mouldy damp conditions in the dwelling and address them.
In addition, the tenant says there were obvious cracks in the plaster of the exterior of the house caused by ongoing dampness in the wall. The tenant says his investigation showed there was no water getting into the wall from outside and therefore the source of the leak had to be internal. The landlord denied there being any cracks n the cladding and states this is where the plaster joins and behind that is a solid wall. The landlord also stated the mould on the external wall the tenant had photographed was nothing more than dirt that had splashed up the wall as the property has a high-water table.
The landlord stated the soak hole was blocked by tenant’s belongings, but the healthy homes report the tenant had done says there was no water coming in from outside and that the driveway flows downhill and takes the water away from the dwelling.
The tenant stated that flooding could have been from blocked soak holes as the soak holes have to be maintained and they were not and that his belongings had not blocked them. The landlord produced some photographs that showed the tenant had some of his belongings stacked up outside the premise near this wall.
The landlord says that after the tenant vacated the premise, she found the tap was leaking under the sink and, because the tenant had asked to cover the alleged gaps in the wall with foam inside and outside, the leak remined undetected until the tenant had moved out. She says that she and her grandson removed the foam and that is how they found the leaky tap in the kitchen. The landlord says she did not know how long the leak had been there as the tenant never reported it. The tenant says he was not aware that the tap was leaking and had the landlord taken the time to get the dampness and mould issues investigated and resolved the leak in all probabilities would have been found earlier.
I find that there is insufficient evidence to prove on the balance of probabilities that the that there were gaps in the interior and exterior wall to the kitchen that the tenant raised with the landlord and that the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. The issue of the leak in the kitchen wall from the tap has been addressed in the leak and mould section above. I therefore dismiss this claim. E. Power points in the kitchenette
The tenant says that from around 12 July 2022, the power point in the kitchen blew out due to the dampness and mould issues. Because this power point was not working so he had an extension cable hanging over sink area, exposed to steam, and risk of further fire due to extension box but because the power points were not working in that area, he had no choice. The landlord says the tenant increased the risk of fire and further electrical issues by doing this.
The tenant confirmed that on 26 September 2022, when the new hot water system was being installed, he reminded the landlord again about the power point in the kitchen being faulty, the flooding, and the bad smells coming from the cupboards.
The landlord’s response was the dwelling was old and if the tenant was not happy, he should cease living there. The tenant provided photographic evidence of the faulty kitchen power points that show signs of water over them and some text messages on 29 September 2022, between the tenant and the landlord where the landlord commits to her brother coming on 4 October 2022 to check the power point as he is a registered electrician.
The tenant has listed the power point in the kitchen needing to be properly repaired in his 28-day notice to remedy dated 8 June 2023 as the landlord’s brother did not investigate or repair the power point on 4 October 2022. The landlord did nothing to address the faulty power points in the kitchen and they were still unsafe and not functional when the tenant moved out.
I am satisfied the landlord did not take steps to get the faulty power points investigated, quoted or repaired in a reasonable timeframe in all the circumstances and consequently the tenant lived with extension cords hanging from the ceiling and power boards to allow him to utilise the kitchen area.
I find the tenant should receive a rent rebate for the period he lived with the loss of amenity of the power points in the kitchen. I find it fair and reasonable for the tenant to receive a rent rebate of $20.00 per week for the period 12 July 2022 to 18 August 2023 (57 weeks and 3 days). being a rent rebate of $1,148.57 ordered.
I am satisfied it would also be just to require the landlord to pay a sum in exemplary damages because: a. The tenant has lived for 57 weeks and 3 days with a loss of amenity stress and inconvenience caused by the loss of the use of the kitchen power points when the landlord knew of these issues and did not take reasonable steps to investigate and remedy it; b. The tenant suffered the stress and inconvenience associated with having to repeatedly follow the landlord up and remind her of her obligations under the RTA to no avail ; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity for 57 weeks and 3 days; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.
As this claim was first raised on 12 July 2022, the tenant is barred by s109(2)(b) of the RTA for claiming exemplary damages for this breach, because this provision places a limit on the Tribunal’s jurisdiction to award exemplary damage for any breach where that application is made more than 12 months after the date of commission of the unlawful act. The application was made on 13 September 2023, more than 12 months after 12 July 2022. F. Gaps in the exterior cladding
The tenant says there were gaps in the exterior cladding of the house on the north wall and that he used foam to fill the gaps to try to stop moisture and cold damp air coming into the dwelling as in June/July 2022 he had found the house getting extremely cold and damp as there were a number of areas where draughts were coming through into the house from the glass in windows in back door, gaps in the cladding, a concrete floor and no insulation.
The partes confirmed the tenant got permission to fill these holes in the cladding with the foam.
The tenant has a photograph of a pipe in the exterior cladding that shows one of the alleged gaps in the cladding before he put the foam in, and says it took two canisters to fill in the 9cm hole under the sink and around the pipe. I saw photographs of the wall after the installation of the foam covering the alleged gaps and confirm the foam was unsightly.
The landlord says that after the tenancy ended and she had the foam removed, she found there were no gaps in the exterior cladding. The landlord’s ex-husband says he scrapped the foam off and painted the building and there are no gaps. Further, he says there is a plaster exterior and behind that is a wooden frame and insulation and there is no way a rat or mouse or damp air could get in. He also stated this area of the house has a soffit above it so there would be no moisture getting into the house from outside.
I find that there is insufficient evidence to prove on the balance of probabilities that there were gaps in the exterior cladding or that the tenant raised these alleged gaps with the landlord after which the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. The tenant proved he got permission to fill the gaps, so has raised it with the landlord just as he was about to fix the issue himself, but there is no evidence to suggest the tenant asked the landlord to specifically address gaps in the exterior cladding prior to that. I therefore dismiss this claim. G. Loose cobblestones on the drive after the pipes beneath broke and caused flooding issues
The tenant has provided evidence of loose cobblestones on the drive after the pipes beneath had broken but has not provided any evidence to support when or how he raised this with the landlord and what her responses was.
This issue is not listed on the tenant’s 28-day notice to remedy and is also not on Ms Jones list of issues form her healthy homes inspection.
I find that there is insufficient evidence to prove on the balance of probabilities that the tenant raised these alleged loose cobblestones with the landlord after which the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. I therefore dismiss this claim. H. Ground behind the flat under the patio causing dampness in the house;
The tenant has provided evidence of moisture behind the flat under the patio that he says caused dampness in the house. He produced photographs that proved the back courtyard was flooded regularly and it took a while to move away or soak into the ground.
This issue is listed on the tenant’s 28-day notice to remedy as “drainage issue in front of main door/around dwelling” but is not on Ms Jones list of issues form her healthy homes inspection. Th landlord denies there was any issue under the patio and says the tenant covered the sink hole.
I find that the tenant’s evidence proves he raised this issue with the landlord on 8 June 202 and by 19 August 2023 when he moved out, the issue had not been investigated or addressed.
I find the rent rebate the tenant has been awarded for the dampness and mould in the house from the leaks above also covers the same loss of amenity, stress, and inconvenience he suffered because of any additional dampness caused by the water pooling under the patio. I. Gaps and draughts coming into the premise
The tenant says that in June/July 2022 he discovered the draughts throughout the premise from: a. The loose glass panels in the French door; b. G. Gaps in the bathroom wall by the toilet bowl on the south side of the premise; and c. Hole under the sink that had been taped over with masking tape.
He says that it took him a while to realise this is a serious matter. When he came back from the South Island, he says he was cold and started to investigate why.
The tenant says he was in survival mode and so did not take comprehensive photographs of these gaps. This issue is not listed on the tenant’s 28-day notice to remedy and is also not on Ms Jones list of issues form her healthy homes inspection.
I find that there is insufficient evidence to prove on the balance of probabilities that the tenant raised these alleged gaps with the landlord after which the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. I therefore dismiss this claim. J. Flooding in front of the door area- drainage issues
The tenant produced photographs dated 12 July 2022 and videos to show that there was flooding in front of the premise.
The landlord says that they were drainlayers and her son is still a registered drainlayer and pointed me to the G Force report dated 30 September 2024 which confirms all the drainage has been checked and is healthy homes compliant.
Further, the landlord says the evidence the tenant has produced is from leaks that happened during cyclone Gabrielle and the meter box that burst and that these were one off events and not indicative of an ongoing drainage problem.
The tenant also raised issues with the pipes running under the driveway rather than running down the side of the driveway and that big trucks could not drive n it as a result. The landlord stated that she did not want big trucks on the driveway as they cause damage generally and nobody wants big trucks on their driveway for that reason. .
The landlord produced photographs that proves the drains run down the side of the driveway and not under it and Mr Warwick Beuashank (handyman) says it was the tenant’s belongings covering the runoff to the soak pits at the top that caused flooding and after he left there has been no further flooding. He also says he put more plants in to soak up the water after the tenant left and there has been no flooding/drainage issues. Mr Beuashank also stated that he started installing a new plastic roof over the porch while the tenant was there but could not finish it as the tenant made it very difficult for anyone trying to do maintenance. The tenant says this was installed the week before he left and that he had put his own plastic roofing up in 2022 and a trellis to stop the rain pummelling down at the door and to try to stop flooding from happening and to give some protection to that front area.
Mr Elsmore stated he has lived at the premise 30 years and during heavy rainwater can build up but dissipates quickly. He said the the back yard area never floods as there is 6 inches of concrete all around the premise and that there was plastic roofing over the front and rear entrances when the tenant moved in. Further, he stated that the people on the adjoining property have the same issues with flooding during downpours and water build ups but in half an hour it is gone.
Mr Elsmore stated that the tenant had fabricated all the issues brought to the Tribunal and that “no one would put up with these things, he could have got emergency housing, people did during COVID-19”. We have to go through this when we gave him a place to stay”.
The tenant stated that it was not true there was plastic sheeting at front door. He says there was a frame but no plastic roof when he arrived. He said he kept was waiting for this to happen. He text the landlord to ask if he could put some up in the interim and she did not respond but saw when she saw it she did not make any negative comments.
I find that there is insufficient evidence to prove on the balance of probabilities that there was an ongoing flooding issue at the front of the house and that after the tenant raised this issue with the landlord that the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. I therefore dismiss this claim. K. Fittings
The tenant says the towel rail fell off around 15 Sept 2022 and the bathroom light fitting constantly coming out from beginning of tenancy. The tenant says the towel rail had been re fitted a few times as can be seen from the plaster around it. Further he says the curtains were insulation material but attached away from the windows letting in draughts and the curtain rails in the lounge kept falling. He said he did not raise these issues with the landlord as he likes to avoid conflict and in the bigger picture, he was more worried about the power and hot water issues.
These issues were first raised with the landlord on 8 June 2023 in the tenant’s 28 day notice to remedy It was also in Ms Jones evidence that she had witnessed these issues with the fittings when she carried out her 13 April 2023 inspection.
The tenant says these issues had not been resolved at the time he moved out of the premise on 19 August 2023.
I find the tenant should receive a rent rebate for the period he lived with the loss of amenity of these fittings. I find it fair and reasonable for the tenant to receive a rent rebate of $10.00 per week for the period 8 June 2023 to 18 August 2023 (10 weeks and 3 days). being a rent rebate of $104.29 ordered. L. Door between bathroom and kitchenette.
The tenant showed a picture of the door with the hinges that had the door opening into the bathroom. He states that he could not use the toilet properly as the door opened into the bathroom leaving no room. Additionally, he stated that it was thick with grease and mould and unhygienic. His 28-day notice to repair dated 8 June 2023 mentions the door needing ti be replaced as that door allows moisture to go from the bathroom to the kitchen and has been collecting mould and grease for some time and is difficult to clean.
The picture the landlord produced of the door has hinges that open out and not in and the door was clean and mould free. The tenant says the door had been stripped, cleaned and varnished after he left as the doorknob on the landlord’s picture had no paint on it in the tenant’s picture there was paint on it so it was not the same door he had lived with.
The tenant says he tried to clean the door and used bleach to try to kill the mould on 14 October 2022, the date of his mouldy photo picture, but had not raised it with the landlord at that time.
The landlord says the door was cleaned and passed by the healthy homes assessment and it was in the premise when it was purchased. about 41 years ago. The landlord says she has never done any alterations on the premise. All that has been done is that it has been painted and maintained. She says the room is attached to the house and has always been there.
The landlord showed a photograph of the door that she says has not be stripped and varnished that shows the door is clean. She says the picture was taken the day after the tenant left. The landlord says it is a natural wooden door and not varnished.
I find that there is insufficient evidence to prove on the balance of probabilities that there was any issues with the bathroom door during the tenancy. The landlord says that is why she did not investigate this issue further after the 8 June 2023 notice. Additionally, she says that the tenant made it clear that no non urgent work was to be undertaken at that stage until the tenancy ended. I therefore dismiss this claim. M. Broken tiles in the bathroom next to the toilet
Ms Jones report states she has witnessed the broken tiles in the bathroom with mould on 7 June 2023 and that this issue was raised with the landlord 8 June 2023 and that a written copy of these issue was left under a vase for the landlord on her doorstep on 9 June 2023. That afternoon, Ms Jones witnessed the landlord come to the tenant’s door and says he can’t do everything in one month.
The tenant produced photographs of the broken tiles in the bathroom next to the toilet and says they were hard to clean. He also stated the toilet bowl was wobbly as it was not properly secured to the floor. This was also in the 28-day notice to remedy.
The landlord says she would have had these things fixed but “not long after they started all the work the tenant sent her a text message to say he only wanted to be texted once a day as she was trying to make life difficult” and she found it too hard to co-ordinate repair people to undertake this work.
I find that there is insufficient evidence to prove on the balance of probabilities that these issues with the bathroom were not undertaken by the landlord in a reasonable time in all the circumstances as there is some evidence to suggest that the tenant made it difficult for the landlord to get these repairs undertaken in the 10 weeks from when they were raised to when the tenant moved out. I therefore dismiss this claim. Smoke alarms- breach of TA and breach of regulations
Section 45(1)(ba) of the RTA states the landlord “shall comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A”.
The tenant claims the rental premise had no working smoke alarms when he moved in but were installed during the tenancy.
The tenant also says when he told the landlord there were no smoke alarms, she told him she was not aware they were required. The tenant says he found an old one in the kitchen and installed it himself. When he told her that, she purchased a new one and told the tenant to install it.
The landlord denies this and says that before the tenant rented the premise, the place was fully renovated, and they put a new alarm in. The landlord says she never purchased a new alarm and asked the tenant to install, and she has always been aware of smoke alarms.
The landlord showed me a picture of a smoke alarm and confirmed that it was not working, and she had given the tenant a battery for it. She says after the battery was installed it was working. Further, she says she checked the smoke alarm when she had the premise, and it was working on the day the tenant moved in.
The tenant’s photographs on 8 April 2023 shows that there was no alarm in the lounge. Mr Elsmore said he been given an alarm and was asked to put it up, so he was “not sure what the fuss was as he had one smoke alarm”.
Fire and Emergency New Zealand (FENZ) website, www.fire.org, confirms both landlords and tenants take some responsible for smoke alarms as follows: a. Landlords must ensure smoke alarms: i. are working at the start of each new tenancy; ii. remain in working order during the tenancy; and iii. That are not working are replaced with photoelectric smoke alarms. b. Tenants must: i. not damage, remove, or disconnect a smoke alarm; ii. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and iii. let the landlord know if there are any problems with the smoke alarms as soon as possible.
I am satisfied that the tenants have proven that the landlord failed to ensure the rental premise was fitted with working smoke alarms that meet the regulatory requirements referred to in the RTA in that at least one alarm was not working from 4 December 2021 until the tenant refitted a new alarm that worked on an undefined date after the tenancy commenced.
I find that the tenant should be awarded compensation for the breach of the landlord’s obligations to provide smoking smoke alarms and award compensation of $200.00 for the breach. Failure to meet buildings, health, and safety under any enactment so far as they apply to the premise
The tenant says the landlord failed to meet her obligations under s45(1)(c) of the RTA as the premise did not meet the building and heath and safety laws.
I note that the Health and Safety at Work Act 2015 only applies to contractors that are working on the remise in unsafe conditions and not to person living in a premise. The failure to ensure the kitchen power points and wiring were safe to use falls into the failure to maintain claims that have already been addressed above.
The tenant says the premise did not meet the building code and building standards as the ceiling height in the premise was 1.9 metres when it should be
1 metres according to the Building Regulations. He produced a copy of the relevant regulation.
The landlord says that she has had a builder into the premise and that because the premise was built prior to the building regulations it does not need to comply.
Section 10 of the Housing Improvement Regulations 1947 (HIR) states: Every habitable room shall have a height from finished floor to finished ceiling of at least 2.1 m in the case of an existing house and of at least 2.4 m in the case of a new house: provided that where a habitable room has a sloping ceiling it shall have that height over at least one-half of its floor area, and in computing that area no regard shall be had to any portion of the room the height of which from finished floor to finished ceiling is less than 1.5 m.
The tenant has proven the ceiling in his premise did not meet the section 10 of the HIR requirements. Therefore, I am satisfied that the landlord was in breach of this obligation and that the tenant should receive compensation of $500.00 for this breach. Failure to meet healthy homes standards
The tenant claims that the landlord has breached her obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
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. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 4 December 2021. Therefore, the landlord had 90 days from the commencement date to comply with all of the healthy homes’ standards, being Friday, 4 March 2022. A. Insulation
[The tenant] claims that the landlord has failed to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). 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 tenant says that when he was shown the place, he was told it was insulated and the place would be snug in the winter. In the winter of 2022, he found that this was not the case.
When he looked, he found that under the sink were a couple of holes and drafts and there did not appear to be any insulation in the wall. Further, above the kitchen in the north side of the house the tenant stated the insulation is old and looks wet and mouldy and that there is no insulation under the floor as the floor is not far off the ground. Additionally, the tenant stated the south wall connected to next door tenant’s wall didn’t appear to be insulated.
The landlord confirmed: a. She has owned the house for 40 years and said that she took off exterior wall panelling, and this shows thick foam insulation in the exterior ceiling cavity of the north facing wall and that it has been regularly checked and at times it has been topped up and that her builder said that is sufficient; b. Sometime after she purchased the property, pink batts were put through the ceiling as these had not been around in 1960’s when house was built. c. The premise has concrete flooring, as the house was built in 1964, so she has been unable to put insulation under the floor, and an exemption applies. She says the floor is made up of concrete, then wood, then a liner and finally tiles. d. Pink batts were installed in the walls inside the whole building when she purchased the home where this was possible. The north wall, the biggest wall, has pink batts in it and the other walls are all concrete block walls that are exempt from the insulation standard.
There has been no third party independent detailed healthy homes assessment and report undertaken by either party. The tenant had Ms Jones conduct an assessment in April 2023 and she produced an email that lists some repair and maintenance issues but does not address the insulation standard. The tenant has not produced any evidence to support his claim the premise did not meet the insulation standard. In addition, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. Any such breach, if proven, would have occurred from 4 March 2022 and therefore the tenant would be statutorily barred from applying for exemplary damages for this breach from 4 March 2023. The tenant made his application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the insulation standard. B. Heating
[The tenant] claims that the landlord has failed to comply with 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 must be one or more fixed heaters that can directly heat the main living room.
The main living room is the largest room that is used for general, everyday living – for example a lounge, family room or dining room.
Heater(s) must be fixed (not portable) and must be at least 1.5 kW in heating capacity and meet the minimum heating capacity needed for the main living room. There are several options to calculate the heating capacity required for the main living room.
The HHS does provide exemptions in specific circumstances.
The tenant says there was no fixed heating in the premise for the duration of the tenancy. He had his own small heater and says he was not provided with any heating at all. He also had to seal the gaps around the living space as it has hard to keep the flat warm.
The landlord says the tenant was given a panel oil column heater that was the correct wattage for the flat when he started his tenancy and the tenant had put this heater outside in the rain as he had his own heater. The tenant says he cannot recall this.
The landlord says this is a tiny studio apartment and a fan heater would do the job and no other tenant has complained about the heating. If he needed something all he had to do was asked and the landlord fixed it.
The tenant says he did not raise the heating issue as any issues raised, such as hot water and power were not addressed even though when he initially moved in the landlord said to tell her if anything needed fixing and she would fix it. He said he had no trust she would try to address the heating issue. The tenant installed a drape between kitchen and living room area, where his desk was, to try and preserve the heat in the main living area.
The landlord also stated that when she gave the tenant notice on 9 June 2023, he said he did not want any further work done until after he left in a text message dated 9 June 2023. This meant she could not have the heat pump and carpet installed until after the tenant vacated the property on 20 August 2023.
The tenant says he told the landlord no non-essential repairs. There was no mention of the heat pump and carpet.
The landlord says there has been a heat pump installed after the tenancy ended.
In this case I have determined that Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the heating standard by Friday, 4 March 2022 and that by the time the tenant sent her the text message asking for no non-essential work to be completed on 9 June 2023, 15 months had passed since the required compliance date.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the heating standard is warranted.
However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the insulation standard. C. Ventilation
[The tenant] claims that the landlord has failed to comply with the heating standard.
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 HHS does provide exemptions in specific circumstances.
The tenant says the dwelling sat at the bottom of the slope and hard to get air circulating. If front door open things would blow into the house so no way to get steam out of the bathroom and kitchen. Tenant had a free-standing fan in the kitchen and tried to blow the steam out.
The landlord confirmed she understood that: a. All habitable rooms in a rental property must have at least one window, door or skylight which opens to the outside and can be fixed in the open position. b. In each room, the size of the openable windows, doors and skylights together must be at least 5% of the floor area of that room. c. Each window door, window or skylight must be openable and must be able to remain fixed in an open position. d. All kitchens and bathrooms must either have an extractor fan that vents air to the outside or a continuous mechanical ventilation that meets certain criteria.
The landlord stated the tenant could have opened the window in the bathroom to ventilate the bathroom and French doors in the kitchen and windows and ranch slider at the other end of the house.
The tenant said there was no ventilation for cooking, so grime built up prior to the start of the tenant’s tenancy on windows and doors. He also says the windows in the kitchen were sealed and unable to be opened. The healthy homes inspector said that needed to be addressed as it was a source of condensation.
The landlord says the kitchen did not have a cooktop installed into it and that the tenant was only provided with an air fryer and was supposed to use the kitchen in the main house but did not. Instead, he purchased a portable hot plate. Therefore, there was no requirement to install a fan or rangehood. The tenant was supposed to only heat food in the kitchen and not cook in there.
The tenant says he was never given a key to the main house, nor shown the kitchen nor told he could use it. He had a cook top, a microwave and an air fryer to cook his food on.
The landlord said the key was under the mat and could have used the kitchen and he said he wouldn’t cook and didn’t need to use the kitchen. The tenant refuted this and reiterated he was never shown the key or the kitchen nor given access to the main house at all. He did cook in the flat using the hot plates and air fryer.
The tenant says the bathroom, which contained a shower, did not have an extractor fan. The landlord says the window in the bathroom opens and that is enough ventilation.
The standard says that in any room with a shower or bath, new fans installed after 1 July 2019 and must have a minimum diameter (including ducting) of 120mm or an exhaust capacity of at least 25 litres per second.
The landlord wanted to install a fan in the bathroom but says the tenant refused access. She says she asked him to open the window, but he seldom did. She stated that when he was out, she went around and opened the window herself as it was never fully shut and was often unlatched. She did this when she was cleaning and washing the windows and gardening but denied going into the house to open this window.
The tenant says he tried to keep the window closed during the winter but left it open during showering. The tenant says he is security conscious and did not leave the window unlatched.
When the healthy homes inspector came around the tenant asked for the extractor fan to be installed. This was part of the 4-week notice issued by the tenant on 8 June 2023, a day before the landlord gave him notice terminating the tenancy.
The landlord says she tried several times to get access to the property to get some works done and the tenant was difficult and asked her only to give notice for essential works, it had to be in a letter to be put in the letterbox and only one request a day. After the landlord gave notice terminating the tenancy, she says he wouldn’t let her or any contractors in at all.
In this case I have determined that Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the ventilation standard by Friday, 4 March 2022 and that by the time the tenant sent her the text message asking for no non-essential work to be completed on 9 June 2023, 15 months had passed since the required compliance date.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the heating standard is warranted. However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the ventilation standard. D. Draught Stopping
[The tenant] claims that the landlord has failed to comply with the draught stopping standard.
The draught stopping standard 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 HHS does provide exemptions in specific circumstances.
The tenant says there were gaps in the framework of the backdoor between the frame and the top and gaps in the glass panes French door. Further, that from the beginning of the tenancy there were two holes (11cm and 9cm) in the kitchen cupboards that went right through to the outside from under the sink and let cold air in and hot air out. The kitchen cupboards were warped not well fitting and let air in and the tenant tried to tape the cupboard gap to cover the mould and stop the cold air coming in. The tenant says the excess moisture was buckling the cupboard door and from 1 September 2022, she had told the landlord the place was substandard.
The tenant used expanding foam on the outside wall (west wall -kitchen area) to seal the cladding to stop the draughts. The landlord says there was no approval for this. The tenant said he was sick of waiting and the inaction and that failure to stop the draughts was negligent. He also says the landlord reimbursed him for the expanding foam he used to seal the cupboards and outside wall, so she had no objected to him doing this work. This is confirmed in a text message the tenant produced from the landlord dated 1 Sept 2022.
The landlord says that after the tenant moved out and the foam was removed, there were no gaps. She also says she was never told about the gaps in the doors and cupboards so could not fix them.
In this case I have find that there is sufficient evidence to prove Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the draught stopping standard by Friday, 4 March 2022.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the draught stopping standard is warranted. However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the draught stopping standard. E. Moisture Ingress and Drainage
[The tenant] claims that the landlord has failed to comply with the 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. The Standard requires a ground moisture barrier when there is an enclosed subfloor space if it is reasonably practical to do so.
The HHS does provide exemptions in specific circumstances.
The tenant said when he moved in, he was told the front did flood and would clear. Further, before cyclone Gabrielle there was a smell of faeces coming up and asked the landlord to investigate the source of this wastewater odour and nothing was done. He says the smell eventually went away when it dried out and a month later the landlord got a flashing put on between her ex-husband’s dwelling and the tenant’s and that stopped the flooding on the south wall.
The tenant says the kitchen continued to be a problem as it kept flooding and the landlord says this was nothing to do with inadequate drainage but was due to furniture and bags the tenant had left over the soak hole. She produced a statement from her gardening contractor that confirmed the tenant’s belongings blocked the sock hole and was left there for a long time.
There is a photograph of the kitchen flooded dated 12 July 2022, that also shows the draw is warped and won’t go in properly and the underside of the bench was soaking wet. The landlord says the tenant never sent any of these photos to her.
The parties also confirmed that in August 2022, there was further flooding. Again the landlord says this was not raised with her.
The landlord got a drainlayer to check the storm water and drains on 17 March 2023 after the tenant had reported flooding in January 2023 from cyclone Gabrielle. He reported that the soak hole was covered by household items during the flooding incident. The landlord says once the tenant removed the items and there was no more flooding.
The tenant denies this and produced a text message from the landlord which shows he raised the soak hole matter again between 6 to 19 June 2023 and asked for the soak holes to be cleaned and maintained as the kitchen flooding continued after these items were taken away.
The tenant says the patio at the back would also fill up with water as it was beneath the ground when it rained. He says his photographic evidence of this was damaged when his iPhone 13 was damaged.
In this case I have find that there is sufficient evidence to prove Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the moisture ingress and drainage standard by Friday, 4 March 2022.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the drainage standard is warranted. However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the moisture ingress and drainage standard. This is a repair and maintenance issue. Exemplary damages for s45(1) of the RTA breaches
I have found that the landlord has committed 1 intentional breach of s45(1)(b) that resulted in the tenant living conditions that were unhealthy and that he experienced considerable periods of stress, inconvenience, and loss of the amenity the tenant was paying rent to enjoy. The landlord did not offer any rent relief to the tenant at these times.
I find the landlord has committed this 1 unlawful act intentionally.
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) Residential Tenancies Act 1986.
I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $1,200.00 exemplary damages to the tenant, being one eighth of the maximum penalty available.
I have found that the landlord’s s45(1)(b) of the RTA breach was intentional and therefore s109(3) of the RTA provides for the Tribunal to award exemplary damages for these breaches. I award the tenant $500.00 in exemplary damages for the bathroom leak breach.
Section109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damages when an application for exemplary damages is made for any breach more than 12 months after the date of commission of the unlawful act. All of the landlord’s other s45(1) of the RTA breaches fall into this restriction period. Was the premise an unlawful residential premise and should the tenant’s rent be reimbursed (s78A of the RTA)?
The tenant claims that the premises are unlawful residential premises as he had no separate address, letter box or rubbish bins for his unit. The landlord produced the Auckland Council rating records that show the entire property as one address, but the land use was listed as multi-unit. The tenant says he was asked to use Mr Elsmore’s bins at the start of the tenancy and part way through he was asked to use the landlady’s bins. There is also not a separate power and water meter for the premise.
He stated that between his flat and the flat next door there is a thick concrete wall that acts as a fire wall.
The landlord confirmed that she had not been made aware during the sale and purchase process that the three separate units were not all lawfully allowed to be used as separate residential premises and did not make any such enquiries when she had looked to purchase the property. The law
Section 45(1)(c) of the RTA confirms the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 45(1A) of the RTA confirms that any breach of s45(1)(a) to (ca) of the RTA is declared to be an unlawful act.
Schedule 1A of the RTA confirms that the Tribunal may award exemplary damages for intentional breaches of s45(1)(a) to (ca) of up to a maximum of $7,200.00.
Section 78A(2) defines an unlawful residential premises as: “a residential premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation) and where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation”.
Section 56A of the RTA confirms: (1)A tenant of premises that at the start of the tenancy were, and that remain, unlawful residential premises may terminate the tenancy by giving not less than 2 days’ notice to the landlord. (2)Without limiting subsection (1), a landlord or a tenant may apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful residential premises. (3)The Tribunal may make the order if section 78A applies and the Tribunal is satisfied that it would be inequitable to refuse to make an order terminating the tenancy.
Where a premise is declared to be an unlawful premise, s78A(4)(a) of the RTA allows the Tribunal to require the landlord to repay to the tenant(s) of all or part of the rent the tenant(s) have paid for the duration of their tenancy.
Section 78A(3)(a) of the RTA confirms: Despite anything to the contrary elsewhere in the RTA, (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, the Tribunal has found the following types of premise to be an unlawful residential premise under Section 78A of the RTA: a. A premises that has never had resource nor building consent; b. Minor dwelling that never had resource consent; c. Minor dwelling that is not consented for sleeping; d. Minor dwelling that does not have CCC or COA; e. A rental property that does not comply with the Building Act 2004; f. A premises that does not comply with the 1947 Housing Improvement Regulations; g. A premise that does not comply with the Building Code.
A landlord is obliged to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes (section 36 RTA). Analysis and findings
The Council documents record that the premises were of an age that none of them required a code of compliance as they were built before the Building Act 2004 was enacted. However, all building work in New Zealand must meet the performance standards set by the Building Code, even if it does not need a consent.
The Building Code sets clear expectations of the standards buildings should meet. It covers: a. structural stability; b. fire safety; c. access; d. moisture control; e. durability; f. services and facilities; and g. energy efficiency.
The Building Code states how a building must perform in its intended use, rather than describing how the building must be designed and constructed.
The tenant has provided plans, resource consent documents from Auckland Council and a planner’s report, dated 16 August 2022, that states the resource consent was only ever given for the two dwellings and the garage in that premise and the new two storey duplex constructed at the eastern portion of the property. The sleep out the tenant rented was not part of the consented buildings.
I am satisfied that the premise is more likely than not an unlawful residential premise, based on the evidence provided to the Tribunal. The tenant has had the amenity of the tenancy since 4 December 2021 and did not raise this issue with the landlord until this hearing.
I find that the tenant could have applied to the Tribunal at any time during his tenancy to end the tenancy if he had been suffering any loss of amenity, stress or inconvenience from renting an unlawful residential premise and he did not. As such, I consider that it would be inequitable to compensate him for rent he paid to enjoy the premise he rented for 20 months 2 weeks without ever raising any issue about whether the premise was lawful.
I dismiss the tenant’s claim for a rent rebate based on the late unlawful residential premise claim.
The landlord noted that the tenant is barred from claiming exemplary damages for this breach by s109(2)(b) of the RTA ,which states that a party may not apply for exemplary damages for a breach of the RTA 12 months or more after the date of commission of the unlawful act. No exemplary damages are awarded for the breach either. Breach of privacy and quiet enjoyment
[The tenant] claims the landlord has harassed him and breached his quiet enjoyment of the premise.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However, Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
The tenant confirmed that the basis for this claim was: a. The chainsaw noise outside kitchen window on 16 August 2023; b. Contractor noise outside kitchen window on 11 August 2023; c. Digging by kitchen window on 11 August 2023; and d. The incident with the landlord’s ex-partner on 19 September 2022.
The tenant provided videos of the chainsaw, contractor and digging noises that relate to these first three claims of breach of the tenant’s quiet enjoyment. The tenant says he was not given any notice of this work being done around the property and that it interfered with his ability to rest and relax and to undertake some photographic works. The landlord says she was trimming the tree herself with secateurs as the tenant had told her she could only undertake essential repairs as he wanted some peace before he moved out. She says that she was making an ornamental garden and Ms Talayus Jones had made it clear the trees/shrubs/weeds needed to be cleared urgently. Further, the landlord says the trees/shrubs were located in a common area as the garden was between the tenant’s place and her ex-husband’s place.
.Excessive noise from work on a rental property can be a breach of quiet enjoyment, as it interferes with a tenant's right to peaceful and comfortable living. While landlords have the right to access the property for repairs and maintenance, this right is not absolute and must be balanced with the tenant's right to quiet enjoyment. The landlord accepts the noise may have been inconvenient but says the noise was not excessive and that noises such as these are a foreseeable part of the clearing/pruning of trees and shrubs that the tenant had claimed were so important to address urgently.
In this case, I am not of the view that the actions of the having the trees, shrubs and weeds cleared can be deemed to be harassment based on the definitions above. Because I do not consider this is a situation of harassment, exemplary damages cannot be ordered for these three claims.
The tenant says that on 19 September 2022, the landlord’s brother Terry and her ex-partner Wayne came storming out of Wayne’s apartment and walked towards him threateningly, mocking was the tenant was saying by repeating it sarcastically and yelling “You clearly don't like it here so PISS OFF!!! You girl!!!!” The tenant was shocked and distressed and said the whole situation with the hot water issue and the way it was being dealt with by these men was toxic. The landlord was aware of the comments and told the tenant “Wayne wouldn't be doing that again”.
Again, I am not of the view that the actions of landlord’s brother and ex-husband on 19 August 2022 can be deemed to be the landlord harassing the tenant, based on the definitions above. The landlord took steps to caution these men when the issue was raised with her about their inappropriate conduct. Because I do not consider this is a situation of harassment, exemplary damages cannot be ordered for this claim.
For the reasons set out above, the tenant’s claims for exemplary damages for breach of his quiet enjoyment is dismissed. Rent increase- 1 weeks notice
The tenant says he was given notice of the rent going up on 24 May 2023 and that that this unlawful handwritten rent increase letter was not dated properly and had no address.
The tenant says he checked if this $20.00 per week increase was to start the next week and the landlord said yes. There is a text message that confirms this.
The tenant says he started making the additional $20.00 per week payment the following week, being $320.00 per week.
Section 24(1)(c) of the RTA provides that the date upon which the increased rent shall become payable shall be not less than 60 days from the date of the notice. The landlord breached this obligation.
I find that the tenant should be awarded back the overpaid rent for the breach of the landlord’s obligations to provide 60 days’ notice of any rent increase and award reimbursement of overpaid rent of $20.00 per week from 24 May 2023 to 19 August 2023 (12 weeks and 3 days) being a rent rebate of $248.57 for the breach.

Did the landlord breach her duties on receipt of the bond?

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
Section 19 (1) of the RTA requires a landlord to send any bond payment to the Bond Centre within 23 working days after the payment is received and to provide a receipt to the tenant for any bond amount paid.
Breaching one or both of this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 for one or both breaches if the breaches are proven to be intentional. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenant confirmed the $300.00 bond was paid before he moved in, and he says he never received a receipt for this bond and it was never lodged with the Bond Centre.
The landlord produced a receipt for the $300.00 bond, dated 9 December 2021 and stated that when the tenant paid her the bond, she thought he was a flatmate and put the bond money into the rent account. When the tenancy ended, she says the tenant had not paid the last week’s rent, so she kept the bond to cover the rent arrears.
The tenant claims he has never seen the receipt produced by the landlord in evidence. She confirmed he had asked for the receipt as he was on a sickness benefit and needed the receipt for WINZ records.
The tenant also says the bond went up to $350.00 at some time but did not produce any evidence that he had paid the additional $50.00 or when.
I am satisfied that the landlord has proven that it is more likely than not she issued the tenant with a receipt for the bond on his request as WINZ required it but has admitted that she never lodged the bond with the Bond Centre. I find she has 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) Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by not lodging the bond within the required timeframe and intentionally compounding that breaches by failing to lodge the bond after the tenant lodged his application with the Tribunal on 13 September 2023.
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) Residential Tenancies Act 1986.
I am satisfied it is in the public interest to penalise a landlord that breaches its s19(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $750.00 exemplary damages to the tenant, being half of the maximum penalty available. Unreasonable withholding of consent to minor changes to the premises
[The tenant] claims the landlord has unreasonably withheld consent to a minor change to the premises.
It is unreasonable for a landlord to withhold consent to a minor change to premises. See 42B(1) Residential Tenancies Act 1986
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 See section 42B(3) and Schedule 1A Residential Tenancies Act 1986.
The tenant says he sent the landlord a text asking if he could put up the plastic roof and got no reply, so he went ahead and installed an interim plastic roof. The tenant says the landlord did not raise any issue with this minor modification.
I do not find that there is sufficient evidence to prove the landlord unreasonably withheld consent for any minor modification and dismiss the claim accordingly. Failure to keep proper business records
[The tenant/s] claims the landlord has not kept records of rent and bond paid.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 30(2) and Schedule 1A RTA).
The tenant says the landlord did not keep proper business records that showed the rent periods, the amounts due, the due dates for rent payments, the date payments were made by the tenant and the amounts the tenant paid and they were required to do so. If he wanted to check whether deductions had been made for reimbursement of costs incurred by him related to the tenancy, these records were not readily available.
Proper business records mean records that are orderly, to a high standard 6 , and contemporaneous with payments made by the tenants 7 .
The landlord confirmed that she keeps bank statements and a diary of payments, and the tenant never asked for any rent summary record during his tenancy so she didn’t think she had to provide them.
The tenant says he gave the landlord a breakdown of what was being paid for water, rent and power so she knew what he was paying and the reason for the payments but at no time did she tell him he owed her money, nor did he ever give him a rent summary to prove that her owed her any monies. It appeared to him that the landlord was avoiding keeping proper documentation in relation to the tenancy to evade tax.
I find the landlord has failed to keep accurate business records that are of a high standard, in accordance with s30 of the RTA, and she has 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.
I find the landlord intentionally failed to retain accurate business records to a high standard and that it would be just to require the landlord to pay a sum of $350.00 in exemplary damages because: a. The landlord should have reasonably known that it is required by law to keep accurate business records that allows it to provide the tenants with accurate rent summaries in a reasonable timeframe, and it did not. b. The tenant is entitled to rely on accurate business records being kept by their landlord for 7 years so that they can be assured their rent payments are being accounted for accurately and they can seek confirmation of how much rent they owe or have overpaid at any given time; c. t is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and 6 Kumar v Capper NZTT Auckland TT1004/90, 12 March 1991 at [8]. 7 Brown v Steele [2002] DCR 338 at [19]. d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations keep accurate business records of a high standard for the protection of both parties’ interests.
I also find that the Tribunal is not statutorily barred from awarding these exemplary damages and the tenant only discovered this breach at the end of his tenancy. Interference with services to the premises
[The tenant] claims the landlord has interfered with the internet services to the premises.
A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.
The tenant claims the landlord interfered with the supply of internet services to the premises and for a few days the internet was off because the landlord had- changed the modem and didn’t give the tenant the password.
The tenant was unable to give me any dates for this breach or proof of it. He says he had to go to the landlord’s house to get the new password.
The landlord confirmed there was trouble with the signal and that she had to get fibre installed. She stated that the tenant was informed and when she rang him to give him the new password he did not answer and was not at home when she went to talk to him. The landlord asked her ex-husband to tell the tenant the password when he next saw him at home.
I do not find that there is sufficient evidence to prove the landlord unreasonably interfered with the internet services and dismiss the claim accordingly. Did the landlord provide the statutorily required healthy homes, smoke alarm and insurance information in the tenancy agreement?
The tenant claims that the landlord has breached her obligations under section 13A(1A), 13A(1CA) and 13A(2) of the Residential Tenancies Act 1986.
Under section 13A(1A) the landlord must include in the tenancy agreement a statement, made and signed by the landlord that describes whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises and the details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises.
Under s13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping. This provision also requires the landlord to record how many smoke alarms are in the premise, when the smoke alarms were last tested and when they expire.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
If the landlord is unable to provide some or all the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Section 13A(2) states 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)).
Breaching the landlord’s s13A(1CA) and/or 13A(2) of the RTA obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant received a flat sharing agreement, that did not contain a healthy homes compliance statement, any of any of the required healthy homes standards information or why such information could not be provided or any smoke alarm or insurance information. As such, the tenants had no idea when they took on the tenancy, whether the premises were fully healthy homes compliant, whether any exemptions apply to the premises, whether there were smoke alarm(s) that were compliant with statutory requirements and whether the landlord had insurance that limited the tenant’s liability for costs associated with any careless or deliberate damages to the premise.
I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, pursuant to section 13A(1F)(a) of the RTA, the Tribunal may award up to a maximum of $750.00 in 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) Residential Tenancies Act 1986.
I am satisfied the landlord failed to provide the tenant with the required completed and signed healthy homes statements and smoke alarm information prescribed by sections 13A(1A),13A(1CA) and 45(1)(bb) of the RTA, or the insurance information prescribed by s13A(2) of the RTA.
I find the landlord intentionally breached 13A(1CA) of the RTA and that, although the Tribunal is statutorily barred from ordering exemplary damages for this breach, it would be just to require the landlord to pay a sum of $375.00 compensation because: a. The landlord should have reasonably known that she is required by to provide the tenants with healthy homes, smoke alarm and insurance information with a written tenancy agreement b. The tenant is entitled to rely on his statutory right to receive information about: i. whether the premise was healthy homes compliant and if it wasn’t, was it exempt from these requirements; ii. whether the premise has compliant smoke alarms, where they are located, when they were last tested and when they expire; and iii. If the landlord has tenant insurance that covers tenant related damage to the premise, what the policy covers and the excess that applies. c. t is in the interests of the tenants to receive compensation for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations ensure the tenants have healthy homes compliance information, smoke alarm information and insurance information given to them prior to the commencement of the tenancy so they can make an informed decision whether or not to rent a non-compliant premise.

Did the termination notice comply with the requirements of ss51 and 54 of the Act?

Was the termination notice lawful?

The tenant says the landlord breached her obligations under s51(2)(f) of the RTA and that the termination notice was unlawful.
Section 51(2) confirms: S51 Termination by notice (2)A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a)the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition; or (b)the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession; or (c)the landlord is not the owner of the premises and the landlord’s interest in the premises is due to end; or (d)the landlord or owner has acquired the premises to facilitate the use of nearby land for a business activity and— (i)that fact is clearly stated in the tenancy agreement; and (ii)the premises are required to be vacant of residential tenants to facilitate that use; or (e)the premises are to be converted into commercial premises for at least 90 days by the landlord or owner; or (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and. (ii)premises are to be demolished and the demolition is to begin, or material steps towards it are to be taken, within 90 days after the termination date. (2A)In subsection (2)(f) and (g), taking a material step means applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step.
The landlord provided a 90-day termination notice to the tenant on 9 June 2023, but the notice is dated 9 June 2003. The notice is confusing as it states the termination is because the landlord is having her grandson come to live with her to assist her, and that she must undertake renovations to the property. She also says the tenant can leave earlier if he wants. The letter makes her grandson moving in sound like the most compelling reason for terminating the tenancy and that he will be able to assist with the maintenance that needs doing.
In a further letter from the landlord, also dated 9 June 2023, the landlord that reiterates her grandson is moving in to assist her after the builder has undertaken inside maintenance work, such as installing a bathroom fan and new tiles and upgrading the kitchen and back door.
The tenant found two advertisements in Countdown advertising the property, so the tenant says this notice was unlawful as the landlord had no intention of moving her grandson into the premise. The landlord says the advertisement was for the flat behind her ex-husband’s unit.
A social worker from aged concern confirmed to me that she has visited the property recently and the landlord’s grandson lives in the unit the tenant occupied.
The landlord also says the tenant accepted the termination and said he would move by such and such date, he decided to go earlier and that was fine by her. She says she tried several times to get access to the property to get some works done and the tenant was difficult and asked her only to give notice for essential works, it had to be in a letter to be put in the letterbox and she could only make only one request a day.
She said that after she gave notice terminating the tenancy, the tenant wouldn’t let her or any contractors in at all.
The landlord’s grandson also gave evidence the tenant was difficult, and the landlord needed to get him out and end the tenancy as he was putting her under too much stress at the time. The landlord says the tenant was difficult with days he would allow access to contractors to come into the house. They had to come in on his terms and when he allowed it. He was “stressing her out” and she “had to get rid of him”. She also said she had been in for a property inspection and found the place dirty and she was having so much trouble she terminated the tenant because of access and the lack of cleanliness and tidiness of the premises and that when she terminated the tenancy she did so in accordance with the . conditions of the flat sharing agreement.
I am satisfied that the landlord did intend her grandson to move in and he did so, but she did not issue a notice giving 63 days termination of the tenancy pursuant to s51(1)(a) of the RTA. I am also satisfied that the premise did require major renovations, particularly in the kitchen, and it would not have been reasonably practicable for the tenant to remain in occupation while that work was undertaken. Therefore, I dismiss the tenant’s claim for unlawful termination of his tenancy.

Was the termination notice retaliatory?

The tenant says the termination notice was retaliatory and the landlord breached her s54 of the RTA obligations to him.
Section 54 of the RTA confirms that the Tribunal may declare the notice retaliatory and of no effect and states: (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
The Tribunal’s powers under s 54 to declare a termination notice to be of no effect requires proof on the balance of probabilities that: The giving of the notice [in this case by the landlord] was motivated wholly or partly by the proposed exercise of a tenant of any right ... conferred by the tenancy agreement ....
Section 51 of the Act allows tenants to make claims in the Tribunal for alleged breaches by the landlord, without fear the landlord will retaliate by ending their tenancy, wholly or partly because the tenants have exercised their rights and have sought remedies conferred on them by the tenancy agreement and/or any statute and/or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
If the landlord issuance of the termination notice was motivated by reason of the tenants asserting their rights, that need not have been the landlord’s sole motivation. It can be one of several reasons that motivated the landlord to otherwise lawfully exercise its right to terminate the tenancy, under s51.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986. Application of the law to the facts
The landlord says she tried several times to get access to the property to get some works done and the tenant was difficult and asked her only to give notice for essential works, it had to be in a letter to be put in the letterbox and only one request a day. After the landlord gave notice terminating the tenancy, he wouldn’t let her or any contractors in at all.
The landlord’s grandson gave evidence the tenant was “difficult” and the landlord “needed to get him out and end the tenancy”.
The landlord also confirmed the tenant’s 8 June 2023 28 days to remedy notice had stressed her out and she was sick of him raising issues. Further, she confirmed she had been in for a property inspection and found the place dirty and she was having so much trouble that she decided to terminate the tenancy as she had to get him out.
The landlord says on 8 June 2023, the day that Ms Jones came and gave her the 28-day notice list of issue, the landlord was talking to her grandson that night and was crying and the grandson said, “you have to get him out and I will help you to get him out and the next day I gave him notice”. Further, she said, “even Wayne told him to buzz off as I was in tears” and “he had not friends and was so difficult that none of the tradesmen wanted to work while he was at the premise”. She told me that she could not handle it any longer as she was “walking on eggshells”. She also stated that she “gave the tenant a nice reference as she wanted him to go” and that she “I tried so hard, and he is making me look like a terrible person”.
She also said she “lived in fear of him” and she “was relieved after he left”. Because she “couldn’t go into my garden without notice. It’s a common area. I should feel comfortable in my own home”. In addition, she stated “I was so careful of what I did and everything I did was wrong. I just wanted him out”.
I have considered all the evidence provided by the parties and am satisfied: a. The landlord was primarily motivated to end the tenancy on 9 June 2023 in retaliation for the tenant raising the repair and maintenance issues on 8 June 2023; and b. While the termination notice meets the requirements of s51(2) and the reason given for the termination appears genuine, I find that the giving of the notice by the landlord was motivated partly by the proposed exercise by the tenant of his contractual and statutory rights to live in a premise that was repaired and maintained to a reasonable standard in all the circumstances.
I am satisfied it would be just to require the landlord to pay $2,166.66 in exemplary damages (one third of the maximum penalty available) because: a. the landlord knew she had issued notice to end the tenancy as she had become stressed out by the 28 day notice the tenant issued for her to remedy a number of repair and maintenance issues and that he had been stressing her out for a while with his complaints about the condition of the premise and her grandson had come up with the idea of moving in to allow her to end the tenancy the day after reeving the 28 notice to remedy; b. the tenant suffered the stress and inconvenience associated with having to find a new place to live at a time when it was not easy to find alternative accommodation; c. It is in the interests of the tenant to receive exemplary damages for the stress and inconvenience of having to move; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to give tenants notice for lawful purposes and not to give notice because they are motivated wholly or partly by the tenants exercising their rights under the tenancy agreement or any Act, or by any complaint they made against the landlord. Reimbursement of filing fee
Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name Suppression
The tenant applies for non-publication of his name and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication is ordered.
The landlord has also applied for non-publication of her name and identifying details. I consider publication is in the public interest or justified because of the landlord’s and her ex-husband’s conduct during the tenancy, which was also demonstrated during the hearing days.
The landlord’s application for name suppress is declined.
I have also decided to publish the address of the premise in case the landlord tried to rent it out to another member of the public, other than family, as a deterrent to persons renting what appears to be an unlawful residential premise and to ensure that other potential renters understand the type of behavioural conduct they may be subjected to by the landlord and her ex-husband.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4667069 — net $10,345.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain- hot water	$804.20	Failure to maintain- hot water
Compensation: Failure to maintain- leaks	$2,871.42	Failure to maintain- leaks
Compensation: Failure to maintain- kitchen power points	$1,148.57	Failure to maintain- kitchen power points
Compensation: Failure to maintain- fittings	$104.29	Failure to maintain- fittings
Compensation: No smoke alarm at start of tenancy	$200.00	No smoke alarm at start of tenancy
Compensation: Ceiling height- breach of s45(1)(c) of the RTA and s10 of HIR	$500.00	Ceiling height- breach of s45(1)(c) of the RTA and s10 of HIR
Exemplary damages: s45(1) of the RTA breach	$500.00	s45(1) of the RTA breach
Compensation: Overpaid rent post unlawful rent increase	$248.57	Overpaid rent post unlawful rent increase
Exemplary damages: Bond not paid to bond centre	$750.00	Bond not paid to bond centre
Exemplary damages: Failure to keep proper business records	$350.00	Failure to keep proper business records
Compensation: Failure to provide the statutorily required information in the tenancy agreement	$375.00	Failure to provide the statutorily required information in the tenancy agreement
Exemplary damages: Retaliatory notice	$2,166.66	342. I am satisfied it would be just to require the landlord to pay $2,166.66 in exemplary damages (one third of the maximum penalty available) because: a.
Filing fee reimbursement	$27.00	Filing fee reimbursement
__________________________________________________________________________________ 46670692 Compensation: Reimbursement	$300.00	__________________________________________________________________________________ 46670692 Compensation: Reimbursement
Net award	$10,345.71
Total payable by Landlord to Tenant	$10,345.71

Claims and awards for application 4667069 — net $10,345.71 NZD. Verify on MoJ.

Compensation: Failure to maintain- hot water

Amount: $804.20
Awarded to: Tenant
Reason: Failure to maintain- hot water

Compensation: Failure to maintain- leaks

Amount: $2,871.42
Awarded to: Tenant
Reason: Failure to maintain- leaks

Compensation: Failure to maintain- kitchen power points

Amount: $1,148.57
Awarded to: Tenant
Reason: Failure to maintain- kitchen power points

Compensation: Failure to maintain- fittings

Amount: $104.29
Awarded to: Tenant
Reason: Failure to maintain- fittings

Compensation: No smoke alarm at start of tenancy

Amount: $200.00
Awarded to: Tenant

Claim types — money lines allowed on this order

Compensation Replace Smoke Alarms Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Gaynor Frances Elmore must pay [The tenant] $10,345.71 immediately, calculated as shown in table below:

Reasons

Adjudicator Setefano determined in her 8 March 2024 Order that the Tribunal had jurisdiction to hear the tenant’s substantive claims.
Both parties attended the hearings with me on 13 June 2024, 2 October 2024, 13 December 2024, 12 and 13 March 2025.
It is of note that on 13 June 2024 all the tenant’s substantive claims were identified and recorded in the 14 June 2024 Order. During this hearing the parties were informed that the Tribunal had no jurisdiction to hear the assault claim.
The tenant applied for refund of the bond and reimbursement of the filing fee as well as compensation, general damages, and exemplary damages for: a. Failure to maintain the premise in a reasonable state of repair (s45(1)(b) of the RTA); b. Failure to comply with the healthy homes’ standards (s45(1)(bb) of the RTA); c. Failure to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises (s45(1)(c) of the RTA and breaches of the Housing Improvement Regulations 1947; d. Failing to lodge the bond within the statutory 23 days or to provide a receipt for the bond in breach of ss19(1)(a) and (b) of the RTA; e. Breach of the tenant’s privacy and quiet enjoyment of the property s 38 of the RTA); f. Failure to keep business records, in accordance with s 30 of the RTA; g. Failure to provide insurance information in the tenancy agreement (s13A (2) of the RTA) h. Interference with the supply of internet services to the premises, other than as a necessary interference to avoid danger to any person or to enable maintenance or repairs to be carried out (s45(2) of the RTA); i. The landlord unreasonably refusing the tenant’s request to make minor modifications to the premises and/or a fixture, renovation, alteration, or addition (s42A and 42B of the RTA); j. Unlawful termination of the tenancy (s51(2)(f) of the RTA), and the termination notice not complying with the requirements set out in s45(3) of the RTA; k. Retaliatory notice (s54 of the RTA; and l. Unlawful residential premises (s78A of the RTA). Background
The tenancy commenced on 4 December 2021 and ended on 19 August 2023.
The tenant rented a furnished studio that is connected to the main house, and it has two separate entrances, front and back. There is no connecting internal door.
The studio has a lounge/bedroom and kitchenette that contains a washing machine and a sink, but no cooking facilities.
The property also has a sleep out and a garage.
Adjudicator Setefano held, in her Order dated 8 March 2024, the Tribunal has jurisdiction to hear the tenant’s claims as the studio was legally found to be a separate household.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. TENANT’S CLAIMS Has the landlord breached its section 45(1)(b), (bb) and (c) obligations to the tenant?
[The tenant/s] claims that the landlord has breached their obligations under section 45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”).
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].
Section 45(1)(c) of the RTA requires a landlord to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Breaching either of these s45(1) 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 Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to maintain
The tenant gave evidence the landlord failed to investigate and repair defects with the property brought to her attention, within a timeframe that is reasonable in all the circumstances. A. Hot water
The tenant confirmed, the issue with the lack of hot water started on 11 December 2021, approximately a week after his tenancy commenced. He confirmed that initially there was an irregular flow of hot water (it ran cold after a few minutes and never really got hot). The tenant thought it was to do with a switch near the washing machine and put up with the issue without complaint.
On 11 August 2022, the shower began to run cold for longer periods of time, so the tenant emailed the landlord about the issue. He followed this email up verbally on 13 August 2022 as he was aware the landlord had difficulty in using email.
The landlord promised to get a plumber to investigate the issue the week of 15 August 2022. On 26 August 2022, the landlord informed the tenant the plumber had COVID-19. The tenant informed her that the issue required a gas technician and not a plumber as the issue was not a plumbing issue.
On 5 September 2022, the tenant raised the issue again. By this time, he was having cold showers all the time.
On 9 September 2022, the tenant states the landlord was gardening outside when she said to him, in a mocking tone, “a gas technician came but you weren't home so he went away again”. She also suggested he “boil a jug” for hot water. The landlord confirmed she had told the tenant to “boil the jug” for his dishes.
The tenant says he was getting fed up with the landlord’s lack of action, so he researched the nature of the problem. He found two reliable sources of information on the Mobil and Elgas websites that told him the current Rinnai Infinity 22 hot water system, that ran on a 9kg barbeque LPG tank was not fit for purpose as it could vaporise the gas to heat hot water during the colder weather. On the advice of Elgas the tenant confirmed he improvised by placing the BBQ gas tank in a large metal bucket filled with boiled hot water to warm up the liquid gas and make it vapor. This worked for short periods of time, up to an hour, but as soon as the water in the bucket cooled the hot water stopped working the shower. The landlord considered this work around to be dangerous, but the tenant had advice that it was safe and it allowed him to access hot water in the house for up to an hour.
On 13 September 2022 the tenant texted the landlord to inform her he still had no hot water without his work around.
On 19 September 2022 a Collins Gas and Plumbing Technician arrived unannounced at the premise to check the hot water system. This contractor informed the landlord the system is “not functional, too old, and not compliant”. The landlord was not happy with this advice as it meant she would have to upgrade the hot water system, so she took advice from her brother, an electrical engineer, who stated the gas and plumbing technician was wrong and that all the system required was a new regulator. When the tenant conveyed his concerns about this not being a solution to the issue, the landlord stated the tenant should be “grateful to have a place so cheaply” and the tenant responded that he was sick and tired of living in a substandard dwelling with her broken promises and lack of action and wanted the issues with the hot water system remediated fully. Later that evening, when the tenant returned home, he found a new regulator had been installed by the landlord’s brother but there was still no hot water. He texted the landlord to inform her the regulator had not fixed the issue, and she responded that he had not been home for her brother to test it.
The next day the tenant took time off work to be at home to allow the landlord’s brother to test the hot water system with the new regulator and he confirmed it did not work. He was puzzled, saying ”It goes and then it shuts down, it lights up then switches off - it must be the sensor”. The tenant reminded him the Collins technician and two other people had said the system was not fit for purpose in any way and needed upgrading. The landlord’s brother remonstrated, saying “They all say that! Its been working for ten years! I run my motorhome off one”. The tenant says the brother accepted that when it gets cold his 9kg LPG tank doesn’t produce hot water either. He accepted the system was old and initially confirmed to the tenant a gas technician would fix it between 2pm and 5pm the next day. The tenant arranged to take time off work the next day to be there to test the new system after it was installed. Then the landlord’s brother informed the tenant the “gas guy was not coming to repair it now as it was too old to repair and would need to replace the whole system”.
The following Monday 26 September 8.30am the landlord confirmed two 45kgs gas bottles would “be delivered that morning”. That afternoon, the same Collins Gas & Plumbing technician fitted the new system and again confirmed that the previous system “was not compliant”. The hot water worked from there on with no further issues. The landlord also confirmed she now “had a Certificate of Compliance” for the hot water and that after her husband had died, she didn't know she was supposed to have one. It puzzled the tenant why the landlord’s brother had not given her better advice if he was a qualified tradesperson.
The landlord stated that the plumber took a while to come due to illness and so her brother stepped in to try and help resolve the hot water issues. The evidence suggests otherwise. It appears the landlord’s brother got involved to try to save her money after the initial investigation work had been done by the Collins Gas and Plumbing Technician. The landlord’s brother’s involvement delayed the resolution of the hot water issue significantly.
I am satisfied the tenant first made the landlord aware he had no hot water on 11 August 2022. A month later, on 9 September 2022, the landlord arranged for a gas and plumbing technician to investigate the issue, but did not tell the tenant or arrange for the tenant to be home to let the technician in. Consequently, the contractor was unable to investigate or remediate the issue. The gas and plumbing technician arrived on 19 September 2022, again unannounced, investigated and found the system “not functional, too old, and not compliant” and recommended it be replaced. The landlord ignored his advice and as a result it took until 26 September 2022 for a new functional and compliant hot water system to be installed that finally gave the tenant access to hot water as he required it for showers and the like.
I find the landlord failed to investigate and remediate the hot water issue in a reasonable time frame in all the circumstances and that the tenant should receive a rent rebate of $100.00 per week for the period of 6 weeks and 4 days (11 August 2022 to 26 September 2022) he has suffered the loss of amenity, stress and inconvenience of not having access to hot water for his showers and dishes etc, being a rent rebate of $804.20
I do not find that this breach was an intentional unlawful act for which exemplary damages and general damages should be awarded. B. Rodents
The tenant says that at first there were mice entering the dwelling. He notified the landlord and purchased a mouse trap. Then rats entered the premise, so he purchased a rat trap. He says the traps proved ineffective as the rats were breeding and that he could hear them at night gnawing on the woodwork, plaster and possibly wires and moving around the dwelling. He stated that the rodents got into his food so he had to ensure things like oats were stored in a secure way that did not allow the rodents to get into the food. He says he asked the landlord to engage a professional rodent exterminator and she told him it was “not worth doing” as “all houses have rats” and they “come up from the river”. He then asked for a professional bait trap outside his dwelling and again the landlord refused this request, saying it was dangerous for dogs and cats. The tenant says he felt helpless as he had to leave the window above his desk and the ranch slider open to try to get an air-flow into the house as the mould in the house and dead air made it difficult for the tenant to breathe. This allowed the rats to enter the house while he was sleeping.
He says he woke at night to the loud crack of the rat trap, which usually did not kill them, and, as close as a meter from his head (because by that stage he was storing food in the wardrobe in his sleeping area as the kitchen area was quarantined due to the mould spores there) He stated he heard and observed a rat doing a dance of death. This happened several times and added to the horror and depression he felt staying in this dwelling.
The Healthy Homes Inspector, Tally Jones, made a note in her report that the landlord was making light of the rat situation and not taking steps to address it.
On 4 June 2022, the tenant texted the landlord about the rats. He informed her that he had purchased a rat trap box and she reimbursed him for the cost of the rat trap.
On 7 June 2023, Tally Jones and the tenant met with the landlord and discussed the list of issues Ms Jones had identified that required addressing. On this list was a request to address the rat issue.
On 8 June 2023, the tenant says he provided the landlord with a list of issues for resolution and item 12 on the list includes rodents being an issue and requests a professional exterminator to lay bait stations and poison not able to hurt domestic animals.
The landlord denies receiving the tenants list of issues for resolution, dated 8 June 2023 (which is a 28-day notice to remedy) or that he raised these issues with her in person on 7 June 2023. The tenant has produced a statement from Tally Jones, who was present at the meeting and saw the notice being handed to the landlord.
On 15 June 2023, the landlord confirmed that the tenant purchased rat poison and deducted it from the rent.
The landlord says that because the tenant was addressing the problem and she had not seen any evidence of the rats she did not investigate this further.
The tenant says he trapped 6 rats but never showed them to the landlord and had taken photographs and a video the rats but had lost these as they were on his I phone 6 which died last year due to a screen malfunction and the tenant hadn't saved copies.
The landlord says she and her ex-husband have never seen or had any issues with rats on the property and that Kevin, who lives in the main house with her ex- husband says he never had any issues with rats or mice. The landlord lives in the house next door a few metres away and says she has no issues with rats and mice.
I find that the tenant has not provided sufficient evidence to prove this claim on the balance of probabilities and dismiss it accordingly. C. Dampness and mould
The tenant gave evidence that when he first moved in the landlord told him the place flooded. He provided photographs that show that the premise also flooded a number of times during the tenancy.
The tenant says the landlord knew the premise flooded but did nothing to prevent further flooding occurring and as a result he had to live in a cold, damp and mouldy environment that led to coughing, aching teeth, a sore on his leg, itching, headaches and brain fog. He says his doctor confirmed these symptoms were all consistent with toxic mould poisoning and that sporotrichosis caused the sore that developed on his leg. He also stated that his dogs, that stayed with him sometimes, developed coughs they had never had before the tenancy or after it as the place was so cold and damp all the time. Leak 1 Kitchen
The tenant claims that from the first winter he was in the premise (May to July 2022) he discovered mould in the kitchen, near the north wall. He says he raised this issue with the landlord by text message and orally when he saw her around the property. The landlord denies the tenant ever raised the mould issue in the kitchen with her.
The tenant says there were bad smells in the cupboards at the end of the kitchenette, that he raised with the landlord each time he saw her in the yard, and that he informed her he was constantly using exit mould to try and keep the mould from developing further. He says the landlord told him it was just an old place.
The tenant produced photographs that show the cupboard under the kitchen sink was damp, mouldy and would not close properly. The tenant also produced photographs that showed he had tried to cover the mouldy areas in the kitchen with plastic sheets and wore a mask to stop being affected by the black mould in 2022, a year before he moved out. He says he developed respiratory issues and rashes on his arms and legs from the mould and thought the segregation of the mouldy areas of the dwelling from the non-mouldy areas may help him to protect his health and wellbeing. He says the landlord laughed at this strategy and made it clear she had noticed he had erected the plastic sheeting and considered the tenant strange for doing this. This view was reiterated to me by the landlord and her ex-husband’s statements made during the hearings. I note that the tenant has produced his medical records that prove he made numerous trips to his GP between 22 September 2022 to 17 April 2023 because of the mould related health issues he was suffering.
The tenant produced photographs of flooding in the kitchen, taken on 12 July 2022. The tenant claims the landlord told him the flooding was caused by a soak pit issue that she says was resolved. The tenant says the flooding in the kitchen persisted throughout his tenancy and was listed on the 28-day notice for improvements provided to the landlord, orally on 7 and in writing on 8 June 2023. The tenant says the water seepage was coming from the north wall as well as from under the floor.
The tenant produced several photographs of black mould on the particle board under the sink, beside the sink, and inside the kitchen cupboards dated 14 September 2022, 9 October 2022, and 15 October 2022.
When the landlord did nothing to address the mould and damp particle board, the tenant put tape on the kitchen cupboard to try to keep t the mould from under the sink spreading into the house as the particle board at back of the cupboard was damp and soft to the touch. The tenant also produced photographs that showed pieces of particle board that came off in porridge like clumps when the tenant tried to clean the mould off the particle board with a damp cloth and mould treatment such as exit mould.
Around 15 October 2022 the tenant filled a hole under the sink and some gaps around pipes coming into the kitchen with foam as the tenant was tired of these gaps letting cold damp air into the house and he thought this might help reduce the dampness causing the mould issue. The mould persisted because of a leaky kitchen tap that at this stage neither party were aware of. Leak 2 sleeping area
The tenant produced phone records that proved he rang the landlord when there was flooding in his sleeping area on 18 August 2022, during some heavy rain. He says that when the rain ceased the flooding went away but left a strong faecal smell. The tenant stated he asked the landlord if there was a drain nearby that was blocked that could be causing the wastewater smell and she said no. The landlord took no steps to dry the sleeping area out, and so the tenant says he dried this out himself with a dehumidifier, but the faecal smell persisted.
The tenant also showed a photograph taken in late October 2022 that shows the tenant’s clothing and camera equipment covered in mould as there was also dampness on the north wall by his wardrobe/storage area.
The tenant also noted the north wall of the premise had guttering that overflowed and caused dampness on the inside of the wall. He produced a photograph of this dated 6 April 2023. The landlord confirmed that she had engaged a handyman to look at the roof some time in 2022 after the tenant complained of leaks and overflowing guttering and he had suggested an additional flashing be installed. The tenant confirmed that this flashing was installed about a month after he complained of leak in sleeping area that wet his duvet and bed (south wall) and that the flashing stopped the sleeping area leak but not the leak causing the damp north wall. The tenant says the south wall where bedroom area was had a leak before flashing put in and had rough edge and was hard to clean. Faecal smell came from front door area (ranch slider) came from right corner .
In Tally Jones 14 April 2023 report, she noted that the foliage around the north wall needed to be cut back to let more sunlight in and to stop moisture and drainage issues. The photographs the tenant produced showed smaller trees/shrubs and foliage on that north wall that were not cut back and that limited the sunlight coming into the premise. These photographs also show the north wall was in a dug-out area next to the driveway and the premise was at the base of a hill. The tenant says that because of these factors he was always concerned about seepage into his dwelling from drainage coming from further up the hill.
The tenant also produced evidence that shows the mould and dampness issues around the kitchen and wardrobe areas resulted in a power point on the north wall and another power point near the north wall blowing out.
The landlord produced a large illegible invoice, dated 11 May 2021, from the tree person that she says had done work on the property. The landlord says she engaged this contractor to trim all the trees and mulch them around the property and trim the puriri trees are down the side of the driveway.
A statement from another tenant, Kevin Puleiafa, dated 29 April 2024, says he lived on the property at the time and had no dampness issues. The landlord did confirm that Mr Puleiafa’s flat was close to the tenant’s but did not share the same north wall.
The landlord’s ex-husband, Wayne Elmore, also gave evidence that his flat is right next to the tenant’s, and he had no mould issues. Further, he says the whole time the tenant was there he did not air the place out and that was what had created the mould as no prior flatmates had any mould issues.
Mr Elmore also stated the tenant put plastic covering over the windows as soon as he moved in and that stopped all light and getting in which contributed to the build-up of mould. Additionally, she showed a photograph the new wardrobe she purchased and installed at the start of the tenant’s tenancy that shows it was clean and dry.
The landlord stated that the tenant never reported the leak or the water on the floor in kitchen or in the sleeping area and he never let her into the house or took her to see the mould. In contrast the landlord also gave conflicting evidence that a month after the tenant raised the issue of the leak in his bedroom, that had soaked his bed and duvet, she put up flashing above the south wall. The tenant says the flashing stopped sleeping area leak but the mouldy wardrobe area near the north wall was being created by a different leak.
The tenant accepts he mostly raised the leak issues orally and not in writing. He also points out that the landlord gave evidence that as soon as she put a new tap in the kitchen the water pooling on the floor stopped. This means she was aware that there were constant leaks in the kitchen and had she had them investigated earlier, the issue could have been resolved but instead the tenant lived with the constant mould and dampness. Further, that it is reasonably foreseeable that where there has been an ongoing leak from a kitchen tap down the back of the wall and into the cupboard below that mould would grow.
The landlord and her ex-husband stated during the hearing that “the tenant should have asked to move out if there were issues with the property” and “there had been no mould issues since the tenant moved out”. I find these statements to be dismissive and they fail to address the fact that the leak has been found and fixed since the tenant moved out and that the landlord has an obligation to provide and maintain the premise in a reasonable state of repair in all the circumstances and it did not. The tenant also confirmed that on a number of occasions Mr Elsmore said “if you don’t like the place you could piss off”.
In Ms Jones 14 April 2023 report she confirms seeing black mould throughout the premise and that it was wet and damp. She also notes that the tenant has discussed the issues with the property that do not meet healthy homes standards but that “he feels by doing so it has damaged the relationship, and feels under threat of becoming homeless if he pushes the matter further while still dwelling at the property”. Her 7 June 2023 healthy homes assessment also confirms the same issues were present. Bathroom
The tenant says the main issue was the north wall in the bathroom and he was concerned that he was being exposed to black mould spores in the steam when he was showering as there was mould in shower box in the silicone seal and behind the basin. Photographs dated 18 October 2022 shows yellow, white and black mould present on the plaster wall in bathroom and between the wall and skirting boards.
Mould was also growing on the wall of the bathroom, above the basin on the right, because of the leaks in the kitchen. The tenant confirmed the mould had continued to grow under the kitchen benchtop, under the sink and in the corner of the kitchen cabinetry.
The tenant produced invoices for products he used to try and clean/kill the mould and asked the landlord for reimbursement of the costs to clean the mould. He stated it was a losing battle.
He says he raised the ongoing mould and dampness issues a number of times with the landlord and can confirm he did so at the same time as he was addressing the hot water and the power point issues. He said the landlord’s response was “maybe you should not be living here”.
On questioning, the landlord says that “if there was mould a normal person would not be wiping it off and not let it grow but would call the landlord to see it”. Further she said “mould is mould isn’t it... If you mop every day and keep it nice and clean you wouldn’t have mould”... “It smelt like a dog kennel as he never cleaned”...“he never ventilated the place that is why it was mouldy”...“the door to the bathroom had not been cleaned for a year”... the tenant “had so much stuff in there no one could work” and “if you don’t clean you get mould and if you get mould you clean it". The landlord clearly blamed the tenant for the significant level of dampness and mould that had developed in the premise without ever fully investigating the issue to confirm whether this was the cause or whether there was indeed a leak/leaks causing the mould to grow.
The landlord also told the Tribunal that her grandson said, “don’t worry, give him notice and I will help you do the work”. She also stated he sent a text message say stop all work on 19 July 2023 and asked that she only undertake essential maintenance. She claimed she didn’t know what essential maintenance was and what she and the tenant considered essential might be different.
I am satisfied the landlord did not take steps to get the leaks and mould issues investigated, quoted or repaired in a reasonable timeframe in all the circumstances and consequently the tenant lived in cold, damp and mouldy conditions for much of his tenancy. The main source of the dampness appears to have been a leaky kitchen tap that remained illusive to both parties until after the tenant moved out but would have been found much earlier if the landlord had investigated the dampness and mould issues when they were first raised. Lack of extractor fans in the kitchen and bathroom added to the issues as did drainage issues.
I find the tenant should receive a rent rebate for the period he lived with the loss of amenity from the various leaks and dampness and mould in the kitchen, bathroom and sleeping areas. I find it fair and reasonable for the tenant to receive a rent rebate of $50.00 per week for the period 12 July 2022 to 18 August 2023 (57 weeks and 3 days). being a rent rebate of $2,871.42 ordered.
I am satisfied it would also be just to require the landlord to pay a sum in exemplary damages because: a. The tenant has lived for 57 weeks and 3 days with a loss of amenity stress and inconvenience caused by the various leaks and resulting mould and damage to his belongings when the landlord knew of these issues and did not take reasonable steps to investigate and remedy them; b. The tenant suffered the stress and inconvenience associated with having to repeatedly follow the landlord up and remind her of her obligations under the RTA to no avail ; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity for 57 weeks and 3 days; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.
The first two leak claims first occurred prior to 13 September 2022, so I the tenant is statutorily barred from claiming exemplary damages for these two breaches. However, the third claim (bathroom) first occurred in October 2022, so is not barred by s109(2)(b) of the RTA which places a limit on the Tribunal’s jurisdiction to award exemplary damage for any breach where that application is made more than 12 months after the date of commission of the unlawful act.
The issue of the quantum of exemplary damages for the bathroom related breach will be addressed at the end of the s45(1) of the RTA breaches section of this Order. D. Interior and exterior wall to the kitchen
The tenant confirmed he pulled out some of the tiles behind the kitchen tap and this showed wet framing behind the wall from a leak and showed a video of this leak and the water damage behind the tiles.
The tenant says the landlord chastised him for doing this and said he should have raised his concerns with her and let her have the issue investigated. The tenant says he raised the leaks in the kitchen with her so many times and she had done nothing to have it investigated or remediated. As such, he thought that if he had concrete proof to show her that she may stop downplaying his concerns about the mouldy damp conditions in the dwelling and address them.
In addition, the tenant says there were obvious cracks in the plaster of the exterior of the house caused by ongoing dampness in the wall. The tenant says his investigation showed there was no water getting into the wall from outside and therefore the source of the leak had to be internal. The landlord denied there being any cracks n the cladding and states this is where the plaster joins and behind that is a solid wall. The landlord also stated the mould on the external wall the tenant had photographed was nothing more than dirt that had splashed up the wall as the property has a high-water table.
The landlord stated the soak hole was blocked by tenant’s belongings, but the healthy homes report the tenant had done says there was no water coming in from outside and that the driveway flows downhill and takes the water away from the dwelling.
The tenant stated that flooding could have been from blocked soak holes as the soak holes have to be maintained and they were not and that his belongings had not blocked them. The landlord produced some photographs that showed the tenant had some of his belongings stacked up outside the premise near this wall.
The landlord says that after the tenant vacated the premise, she found the tap was leaking under the sink and, because the tenant had asked to cover the alleged gaps in the wall with foam inside and outside, the leak remined undetected until the tenant had moved out. She says that she and her grandson removed the foam and that is how they found the leaky tap in the kitchen. The landlord says she did not know how long the leak had been there as the tenant never reported it. The tenant says he was not aware that the tap was leaking and had the landlord taken the time to get the dampness and mould issues investigated and resolved the leak in all probabilities would have been found earlier.
I find that there is insufficient evidence to prove on the balance of probabilities that the that there were gaps in the interior and exterior wall to the kitchen that the tenant raised with the landlord and that the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. The issue of the leak in the kitchen wall from the tap has been addressed in the leak and mould section above. I therefore dismiss this claim. E. Power points in the kitchenette
The tenant says that from around 12 July 2022, the power point in the kitchen blew out due to the dampness and mould issues. Because this power point was not working so he had an extension cable hanging over sink area, exposed to steam, and risk of further fire due to extension box but because the power points were not working in that area, he had no choice. The landlord says the tenant increased the risk of fire and further electrical issues by doing this.
The tenant confirmed that on 26 September 2022, when the new hot water system was being installed, he reminded the landlord again about the power point in the kitchen being faulty, the flooding, and the bad smells coming from the cupboards.
The landlord’s response was the dwelling was old and if the tenant was not happy, he should cease living there. The tenant provided photographic evidence of the faulty kitchen power points that show signs of water over them and some text messages on 29 September 2022, between the tenant and the landlord where the landlord commits to her brother coming on 4 October 2022 to check the power point as he is a registered electrician.
The tenant has listed the power point in the kitchen needing to be properly repaired in his 28-day notice to remedy dated 8 June 2023 as the landlord’s brother did not investigate or repair the power point on 4 October 2022. The landlord did nothing to address the faulty power points in the kitchen and they were still unsafe and not functional when the tenant moved out.
I am satisfied the landlord did not take steps to get the faulty power points investigated, quoted or repaired in a reasonable timeframe in all the circumstances and consequently the tenant lived with extension cords hanging from the ceiling and power boards to allow him to utilise the kitchen area.
I find the tenant should receive a rent rebate for the period he lived with the loss of amenity of the power points in the kitchen. I find it fair and reasonable for the tenant to receive a rent rebate of $20.00 per week for the period 12 July 2022 to 18 August 2023 (57 weeks and 3 days). being a rent rebate of $1,148.57 ordered.
I am satisfied it would also be just to require the landlord to pay a sum in exemplary damages because: a. The tenant has lived for 57 weeks and 3 days with a loss of amenity stress and inconvenience caused by the loss of the use of the kitchen power points when the landlord knew of these issues and did not take reasonable steps to investigate and remedy it; b. The tenant suffered the stress and inconvenience associated with having to repeatedly follow the landlord up and remind her of her obligations under the RTA to no avail ; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity for 57 weeks and 3 days; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.
As this claim was first raised on 12 July 2022, the tenant is barred by s109(2)(b) of the RTA for claiming exemplary damages for this breach, because this provision places a limit on the Tribunal’s jurisdiction to award exemplary damage for any breach where that application is made more than 12 months after the date of commission of the unlawful act. The application was made on 13 September 2023, more than 12 months after 12 July 2022. F. Gaps in the exterior cladding
The tenant says there were gaps in the exterior cladding of the house on the north wall and that he used foam to fill the gaps to try to stop moisture and cold damp air coming into the dwelling as in June/July 2022 he had found the house getting extremely cold and damp as there were a number of areas where draughts were coming through into the house from the glass in windows in back door, gaps in the cladding, a concrete floor and no insulation.
The partes confirmed the tenant got permission to fill these holes in the cladding with the foam.
The tenant has a photograph of a pipe in the exterior cladding that shows one of the alleged gaps in the cladding before he put the foam in, and says it took two canisters to fill in the 9cm hole under the sink and around the pipe. I saw photographs of the wall after the installation of the foam covering the alleged gaps and confirm the foam was unsightly.
The landlord says that after the tenancy ended and she had the foam removed, she found there were no gaps in the exterior cladding. The landlord’s ex-husband says he scrapped the foam off and painted the building and there are no gaps. Further, he says there is a plaster exterior and behind that is a wooden frame and insulation and there is no way a rat or mouse or damp air could get in. He also stated this area of the house has a soffit above it so there would be no moisture getting into the house from outside.
I find that there is insufficient evidence to prove on the balance of probabilities that there were gaps in the exterior cladding or that the tenant raised these alleged gaps with the landlord after which the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. The tenant proved he got permission to fill the gaps, so has raised it with the landlord just as he was about to fix the issue himself, but there is no evidence to suggest the tenant asked the landlord to specifically address gaps in the exterior cladding prior to that. I therefore dismiss this claim. G. Loose cobblestones on the drive after the pipes beneath broke and caused flooding issues
The tenant has provided evidence of loose cobblestones on the drive after the pipes beneath had broken but has not provided any evidence to support when or how he raised this with the landlord and what her responses was.
This issue is not listed on the tenant’s 28-day notice to remedy and is also not on Ms Jones list of issues form her healthy homes inspection.
I find that there is insufficient evidence to prove on the balance of probabilities that the tenant raised these alleged loose cobblestones with the landlord after which the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. I therefore dismiss this claim. H. Ground behind the flat under the patio causing dampness in the house;
The tenant has provided evidence of moisture behind the flat under the patio that he says caused dampness in the house. He produced photographs that proved the back courtyard was flooded regularly and it took a while to move away or soak into the ground.
This issue is listed on the tenant’s 28-day notice to remedy as “drainage issue in front of main door/around dwelling” but is not on Ms Jones list of issues form her healthy homes inspection. Th landlord denies there was any issue under the patio and says the tenant covered the sink hole.
I find that the tenant’s evidence proves he raised this issue with the landlord on 8 June 202 and by 19 August 2023 when he moved out, the issue had not been investigated or addressed.
I find the rent rebate the tenant has been awarded for the dampness and mould in the house from the leaks above also covers the same loss of amenity, stress, and inconvenience he suffered because of any additional dampness caused by the water pooling under the patio. I. Gaps and draughts coming into the premise
The tenant says that in June/July 2022 he discovered the draughts throughout the premise from: a. The loose glass panels in the French door; b. G. Gaps in the bathroom wall by the toilet bowl on the south side of the premise; and c. Hole under the sink that had been taped over with masking tape.
He says that it took him a while to realise this is a serious matter. When he came back from the South Island, he says he was cold and started to investigate why.
The tenant says he was in survival mode and so did not take comprehensive photographs of these gaps. This issue is not listed on the tenant’s 28-day notice to remedy and is also not on Ms Jones list of issues form her healthy homes inspection.
I find that there is insufficient evidence to prove on the balance of probabilities that the tenant raised these alleged gaps with the landlord after which the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. I therefore dismiss this claim. J. Flooding in front of the door area- drainage issues
The tenant produced photographs dated 12 July 2022 and videos to show that there was flooding in front of the premise.
The landlord says that they were drainlayers and her son is still a registered drainlayer and pointed me to the G Force report dated 30 September 2024 which confirms all the drainage has been checked and is healthy homes compliant.
Further, the landlord says the evidence the tenant has produced is from leaks that happened during cyclone Gabrielle and the meter box that burst and that these were one off events and not indicative of an ongoing drainage problem.
The tenant also raised issues with the pipes running under the driveway rather than running down the side of the driveway and that big trucks could not drive n it as a result. The landlord stated that she did not want big trucks on the driveway as they cause damage generally and nobody wants big trucks on their driveway for that reason. .
The landlord produced photographs that proves the drains run down the side of the driveway and not under it and Mr Warwick Beuashank (handyman) says it was the tenant’s belongings covering the runoff to the soak pits at the top that caused flooding and after he left there has been no further flooding. He also says he put more plants in to soak up the water after the tenant left and there has been no flooding/drainage issues. Mr Beuashank also stated that he started installing a new plastic roof over the porch while the tenant was there but could not finish it as the tenant made it very difficult for anyone trying to do maintenance. The tenant says this was installed the week before he left and that he had put his own plastic roofing up in 2022 and a trellis to stop the rain pummelling down at the door and to try to stop flooding from happening and to give some protection to that front area.
Mr Elsmore stated he has lived at the premise 30 years and during heavy rainwater can build up but dissipates quickly. He said the the back yard area never floods as there is 6 inches of concrete all around the premise and that there was plastic roofing over the front and rear entrances when the tenant moved in. Further, he stated that the people on the adjoining property have the same issues with flooding during downpours and water build ups but in half an hour it is gone.
Mr Elsmore stated that the tenant had fabricated all the issues brought to the Tribunal and that “no one would put up with these things, he could have got emergency housing, people did during COVID-19”. We have to go through this when we gave him a place to stay”.
The tenant stated that it was not true there was plastic sheeting at front door. He says there was a frame but no plastic roof when he arrived. He said he kept was waiting for this to happen. He text the landlord to ask if he could put some up in the interim and she did not respond but saw when she saw it she did not make any negative comments.
I find that there is insufficient evidence to prove on the balance of probabilities that there was an ongoing flooding issue at the front of the house and that after the tenant raised this issue with the landlord that the landlord did not take steps to remedy in a reasonable time frame in all the circumstances. I therefore dismiss this claim. K. Fittings
The tenant says the towel rail fell off around 15 Sept 2022 and the bathroom light fitting constantly coming out from beginning of tenancy. The tenant says the towel rail had been re fitted a few times as can be seen from the plaster around it. Further he says the curtains were insulation material but attached away from the windows letting in draughts and the curtain rails in the lounge kept falling. He said he did not raise these issues with the landlord as he likes to avoid conflict and in the bigger picture, he was more worried about the power and hot water issues.
These issues were first raised with the landlord on 8 June 2023 in the tenant’s 28 day notice to remedy It was also in Ms Jones evidence that she had witnessed these issues with the fittings when she carried out her 13 April 2023 inspection.
The tenant says these issues had not been resolved at the time he moved out of the premise on 19 August 2023.
I find the tenant should receive a rent rebate for the period he lived with the loss of amenity of these fittings. I find it fair and reasonable for the tenant to receive a rent rebate of $10.00 per week for the period 8 June 2023 to 18 August 2023 (10 weeks and 3 days). being a rent rebate of $104.29 ordered. L. Door between bathroom and kitchenette.
The tenant showed a picture of the door with the hinges that had the door opening into the bathroom. He states that he could not use the toilet properly as the door opened into the bathroom leaving no room. Additionally, he stated that it was thick with grease and mould and unhygienic. His 28-day notice to repair dated 8 June 2023 mentions the door needing ti be replaced as that door allows moisture to go from the bathroom to the kitchen and has been collecting mould and grease for some time and is difficult to clean.
The picture the landlord produced of the door has hinges that open out and not in and the door was clean and mould free. The tenant says the door had been stripped, cleaned and varnished after he left as the doorknob on the landlord’s picture had no paint on it in the tenant’s picture there was paint on it so it was not the same door he had lived with.
The tenant says he tried to clean the door and used bleach to try to kill the mould on 14 October 2022, the date of his mouldy photo picture, but had not raised it with the landlord at that time.
The landlord says the door was cleaned and passed by the healthy homes assessment and it was in the premise when it was purchased. about 41 years ago. The landlord says she has never done any alterations on the premise. All that has been done is that it has been painted and maintained. She says the room is attached to the house and has always been there.
The landlord showed a photograph of the door that she says has not be stripped and varnished that shows the door is clean. She says the picture was taken the day after the tenant left. The landlord says it is a natural wooden door and not varnished.
I find that there is insufficient evidence to prove on the balance of probabilities that there was any issues with the bathroom door during the tenancy. The landlord says that is why she did not investigate this issue further after the 8 June 2023 notice. Additionally, she says that the tenant made it clear that no non urgent work was to be undertaken at that stage until the tenancy ended. I therefore dismiss this claim. M. Broken tiles in the bathroom next to the toilet
Ms Jones report states she has witnessed the broken tiles in the bathroom with mould on 7 June 2023 and that this issue was raised with the landlord 8 June 2023 and that a written copy of these issue was left under a vase for the landlord on her doorstep on 9 June 2023. That afternoon, Ms Jones witnessed the landlord come to the tenant’s door and says he can’t do everything in one month.
The tenant produced photographs of the broken tiles in the bathroom next to the toilet and says they were hard to clean. He also stated the toilet bowl was wobbly as it was not properly secured to the floor. This was also in the 28-day notice to remedy.
The landlord says she would have had these things fixed but “not long after they started all the work the tenant sent her a text message to say he only wanted to be texted once a day as she was trying to make life difficult” and she found it too hard to co-ordinate repair people to undertake this work.
I find that there is insufficient evidence to prove on the balance of probabilities that these issues with the bathroom were not undertaken by the landlord in a reasonable time in all the circumstances as there is some evidence to suggest that the tenant made it difficult for the landlord to get these repairs undertaken in the 10 weeks from when they were raised to when the tenant moved out. I therefore dismiss this claim. Smoke alarms- breach of TA and breach of regulations
Section 45(1)(ba) of the RTA states the landlord “shall comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A”.
The tenant claims the rental premise had no working smoke alarms when he moved in but were installed during the tenancy.
The tenant also says when he told the landlord there were no smoke alarms, she told him she was not aware they were required. The tenant says he found an old one in the kitchen and installed it himself. When he told her that, she purchased a new one and told the tenant to install it.
The landlord denies this and says that before the tenant rented the premise, the place was fully renovated, and they put a new alarm in. The landlord says she never purchased a new alarm and asked the tenant to install, and she has always been aware of smoke alarms.
The landlord showed me a picture of a smoke alarm and confirmed that it was not working, and she had given the tenant a battery for it. She says after the battery was installed it was working. Further, she says she checked the smoke alarm when she had the premise, and it was working on the day the tenant moved in.
The tenant’s photographs on 8 April 2023 shows that there was no alarm in the lounge. Mr Elsmore said he been given an alarm and was asked to put it up, so he was “not sure what the fuss was as he had one smoke alarm”.
Fire and Emergency New Zealand (FENZ) website, www.fire.org, confirms both landlords and tenants take some responsible for smoke alarms as follows: a. Landlords must ensure smoke alarms: i. are working at the start of each new tenancy; ii. remain in working order during the tenancy; and iii. That are not working are replaced with photoelectric smoke alarms. b. Tenants must: i. not damage, remove, or disconnect a smoke alarm; ii. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and iii. let the landlord know if there are any problems with the smoke alarms as soon as possible.
I am satisfied that the tenants have proven that the landlord failed to ensure the rental premise was fitted with working smoke alarms that meet the regulatory requirements referred to in the RTA in that at least one alarm was not working from 4 December 2021 until the tenant refitted a new alarm that worked on an undefined date after the tenancy commenced.
I find that the tenant should be awarded compensation for the breach of the landlord’s obligations to provide smoking smoke alarms and award compensation of $200.00 for the breach. Failure to meet buildings, health, and safety under any enactment so far as they apply to the premise
The tenant says the landlord failed to meet her obligations under s45(1)(c) of the RTA as the premise did not meet the building and heath and safety laws.
I note that the Health and Safety at Work Act 2015 only applies to contractors that are working on the remise in unsafe conditions and not to person living in a premise. The failure to ensure the kitchen power points and wiring were safe to use falls into the failure to maintain claims that have already been addressed above.
The tenant says the premise did not meet the building code and building standards as the ceiling height in the premise was 1.9 metres when it should be
1 metres according to the Building Regulations. He produced a copy of the relevant regulation.
The landlord says that she has had a builder into the premise and that because the premise was built prior to the building regulations it does not need to comply.
Section 10 of the Housing Improvement Regulations 1947 (HIR) states: Every habitable room shall have a height from finished floor to finished ceiling of at least 2.1 m in the case of an existing house and of at least 2.4 m in the case of a new house: provided that where a habitable room has a sloping ceiling it shall have that height over at least one-half of its floor area, and in computing that area no regard shall be had to any portion of the room the height of which from finished floor to finished ceiling is less than 1.5 m.
The tenant has proven the ceiling in his premise did not meet the section 10 of the HIR requirements. Therefore, I am satisfied that the landlord was in breach of this obligation and that the tenant should receive compensation of $500.00 for this breach. Failure to meet healthy homes standards
The tenant claims that the landlord has breached her obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
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. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 4 December 2021. Therefore, the landlord had 90 days from the commencement date to comply with all of the healthy homes’ standards, being Friday, 4 March 2022. A. Insulation
[The tenant] claims that the landlord has failed to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). 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 tenant says that when he was shown the place, he was told it was insulated and the place would be snug in the winter. In the winter of 2022, he found that this was not the case.
When he looked, he found that under the sink were a couple of holes and drafts and there did not appear to be any insulation in the wall. Further, above the kitchen in the north side of the house the tenant stated the insulation is old and looks wet and mouldy and that there is no insulation under the floor as the floor is not far off the ground. Additionally, the tenant stated the south wall connected to next door tenant’s wall didn’t appear to be insulated.
The landlord confirmed: a. She has owned the house for 40 years and said that she took off exterior wall panelling, and this shows thick foam insulation in the exterior ceiling cavity of the north facing wall and that it has been regularly checked and at times it has been topped up and that her builder said that is sufficient; b. Sometime after she purchased the property, pink batts were put through the ceiling as these had not been around in 1960’s when house was built. c. The premise has concrete flooring, as the house was built in 1964, so she has been unable to put insulation under the floor, and an exemption applies. She says the floor is made up of concrete, then wood, then a liner and finally tiles. d. Pink batts were installed in the walls inside the whole building when she purchased the home where this was possible. The north wall, the biggest wall, has pink batts in it and the other walls are all concrete block walls that are exempt from the insulation standard.
There has been no third party independent detailed healthy homes assessment and report undertaken by either party. The tenant had Ms Jones conduct an assessment in April 2023 and she produced an email that lists some repair and maintenance issues but does not address the insulation standard. The tenant has not produced any evidence to support his claim the premise did not meet the insulation standard. In addition, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. Any such breach, if proven, would have occurred from 4 March 2022 and therefore the tenant would be statutorily barred from applying for exemplary damages for this breach from 4 March 2023. The tenant made his application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the insulation standard. B. Heating
[The tenant] claims that the landlord has failed to comply with 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 must be one or more fixed heaters that can directly heat the main living room.
The main living room is the largest room that is used for general, everyday living – for example a lounge, family room or dining room.
Heater(s) must be fixed (not portable) and must be at least 1.5 kW in heating capacity and meet the minimum heating capacity needed for the main living room. There are several options to calculate the heating capacity required for the main living room.
The HHS does provide exemptions in specific circumstances.
The tenant says there was no fixed heating in the premise for the duration of the tenancy. He had his own small heater and says he was not provided with any heating at all. He also had to seal the gaps around the living space as it has hard to keep the flat warm.
The landlord says the tenant was given a panel oil column heater that was the correct wattage for the flat when he started his tenancy and the tenant had put this heater outside in the rain as he had his own heater. The tenant says he cannot recall this.
The landlord says this is a tiny studio apartment and a fan heater would do the job and no other tenant has complained about the heating. If he needed something all he had to do was asked and the landlord fixed it.
The tenant says he did not raise the heating issue as any issues raised, such as hot water and power were not addressed even though when he initially moved in the landlord said to tell her if anything needed fixing and she would fix it. He said he had no trust she would try to address the heating issue. The tenant installed a drape between kitchen and living room area, where his desk was, to try and preserve the heat in the main living area.
The landlord also stated that when she gave the tenant notice on 9 June 2023, he said he did not want any further work done until after he left in a text message dated 9 June 2023. This meant she could not have the heat pump and carpet installed until after the tenant vacated the property on 20 August 2023.
The tenant says he told the landlord no non-essential repairs. There was no mention of the heat pump and carpet.
The landlord says there has been a heat pump installed after the tenancy ended.
In this case I have determined that Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the heating standard by Friday, 4 March 2022 and that by the time the tenant sent her the text message asking for no non-essential work to be completed on 9 June 2023, 15 months had passed since the required compliance date.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the heating standard is warranted.
However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the insulation standard. C. Ventilation
[The tenant] claims that the landlord has failed to comply with the heating standard.
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 HHS does provide exemptions in specific circumstances.
The tenant says the dwelling sat at the bottom of the slope and hard to get air circulating. If front door open things would blow into the house so no way to get steam out of the bathroom and kitchen. Tenant had a free-standing fan in the kitchen and tried to blow the steam out.
The landlord confirmed she understood that: a. All habitable rooms in a rental property must have at least one window, door or skylight which opens to the outside and can be fixed in the open position. b. In each room, the size of the openable windows, doors and skylights together must be at least 5% of the floor area of that room. c. Each window door, window or skylight must be openable and must be able to remain fixed in an open position. d. All kitchens and bathrooms must either have an extractor fan that vents air to the outside or a continuous mechanical ventilation that meets certain criteria.
The landlord stated the tenant could have opened the window in the bathroom to ventilate the bathroom and French doors in the kitchen and windows and ranch slider at the other end of the house.
The tenant said there was no ventilation for cooking, so grime built up prior to the start of the tenant’s tenancy on windows and doors. He also says the windows in the kitchen were sealed and unable to be opened. The healthy homes inspector said that needed to be addressed as it was a source of condensation.
The landlord says the kitchen did not have a cooktop installed into it and that the tenant was only provided with an air fryer and was supposed to use the kitchen in the main house but did not. Instead, he purchased a portable hot plate. Therefore, there was no requirement to install a fan or rangehood. The tenant was supposed to only heat food in the kitchen and not cook in there.
The tenant says he was never given a key to the main house, nor shown the kitchen nor told he could use it. He had a cook top, a microwave and an air fryer to cook his food on.
The landlord said the key was under the mat and could have used the kitchen and he said he wouldn’t cook and didn’t need to use the kitchen. The tenant refuted this and reiterated he was never shown the key or the kitchen nor given access to the main house at all. He did cook in the flat using the hot plates and air fryer.
The tenant says the bathroom, which contained a shower, did not have an extractor fan. The landlord says the window in the bathroom opens and that is enough ventilation.
The standard says that in any room with a shower or bath, new fans installed after 1 July 2019 and must have a minimum diameter (including ducting) of 120mm or an exhaust capacity of at least 25 litres per second.
The landlord wanted to install a fan in the bathroom but says the tenant refused access. She says she asked him to open the window, but he seldom did. She stated that when he was out, she went around and opened the window herself as it was never fully shut and was often unlatched. She did this when she was cleaning and washing the windows and gardening but denied going into the house to open this window.
The tenant says he tried to keep the window closed during the winter but left it open during showering. The tenant says he is security conscious and did not leave the window unlatched.
When the healthy homes inspector came around the tenant asked for the extractor fan to be installed. This was part of the 4-week notice issued by the tenant on 8 June 2023, a day before the landlord gave him notice terminating the tenancy.
The landlord says she tried several times to get access to the property to get some works done and the tenant was difficult and asked her only to give notice for essential works, it had to be in a letter to be put in the letterbox and only one request a day. After the landlord gave notice terminating the tenancy, she says he wouldn’t let her or any contractors in at all.
In this case I have determined that Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the ventilation standard by Friday, 4 March 2022 and that by the time the tenant sent her the text message asking for no non-essential work to be completed on 9 June 2023, 15 months had passed since the required compliance date.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the heating standard is warranted. However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the ventilation standard. D. Draught Stopping
[The tenant] claims that the landlord has failed to comply with the draught stopping standard.
The draught stopping standard 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 HHS does provide exemptions in specific circumstances.
The tenant says there were gaps in the framework of the backdoor between the frame and the top and gaps in the glass panes French door. Further, that from the beginning of the tenancy there were two holes (11cm and 9cm) in the kitchen cupboards that went right through to the outside from under the sink and let cold air in and hot air out. The kitchen cupboards were warped not well fitting and let air in and the tenant tried to tape the cupboard gap to cover the mould and stop the cold air coming in. The tenant says the excess moisture was buckling the cupboard door and from 1 September 2022, she had told the landlord the place was substandard.
The tenant used expanding foam on the outside wall (west wall -kitchen area) to seal the cladding to stop the draughts. The landlord says there was no approval for this. The tenant said he was sick of waiting and the inaction and that failure to stop the draughts was negligent. He also says the landlord reimbursed him for the expanding foam he used to seal the cupboards and outside wall, so she had no objected to him doing this work. This is confirmed in a text message the tenant produced from the landlord dated 1 Sept 2022.
The landlord says that after the tenant moved out and the foam was removed, there were no gaps. She also says she was never told about the gaps in the doors and cupboards so could not fix them.
In this case I have find that there is sufficient evidence to prove Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the draught stopping standard by Friday, 4 March 2022.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the draught stopping standard is warranted. However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the draught stopping standard. E. Moisture Ingress and Drainage
[The tenant] claims that the landlord has failed to comply with the 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. The Standard requires a ground moisture barrier when there is an enclosed subfloor space if it is reasonably practical to do so.
The HHS does provide exemptions in specific circumstances.
The tenant said when he moved in, he was told the front did flood and would clear. Further, before cyclone Gabrielle there was a smell of faeces coming up and asked the landlord to investigate the source of this wastewater odour and nothing was done. He says the smell eventually went away when it dried out and a month later the landlord got a flashing put on between her ex-husband’s dwelling and the tenant’s and that stopped the flooding on the south wall.
The tenant says the kitchen continued to be a problem as it kept flooding and the landlord says this was nothing to do with inadequate drainage but was due to furniture and bags the tenant had left over the soak hole. She produced a statement from her gardening contractor that confirmed the tenant’s belongings blocked the sock hole and was left there for a long time.
There is a photograph of the kitchen flooded dated 12 July 2022, that also shows the draw is warped and won’t go in properly and the underside of the bench was soaking wet. The landlord says the tenant never sent any of these photos to her.
The parties also confirmed that in August 2022, there was further flooding. Again the landlord says this was not raised with her.
The landlord got a drainlayer to check the storm water and drains on 17 March 2023 after the tenant had reported flooding in January 2023 from cyclone Gabrielle. He reported that the soak hole was covered by household items during the flooding incident. The landlord says once the tenant removed the items and there was no more flooding.
The tenant denies this and produced a text message from the landlord which shows he raised the soak hole matter again between 6 to 19 June 2023 and asked for the soak holes to be cleaned and maintained as the kitchen flooding continued after these items were taken away.
The tenant says the patio at the back would also fill up with water as it was beneath the ground when it rained. He says his photographic evidence of this was damaged when his iPhone 13 was damaged.
In this case I have find that there is sufficient evidence to prove Gaynor Frances Elmore has committed an unlawful act by failing to ensure the premise met the moisture ingress and drainage standard by Friday, 4 March 2022.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I have determined that exemplary damages for this intentional breach of the drainage standard is warranted. However, s109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damage in that this provision states that the tenants cannot apply for exemplary damages for any breach where that application is made more than 12 months after the date of commission of the unlawful act. This breach occurred from 4 March 2022 and therefore the tenant was statutorily barred from applying for exemplary damages for these breaches from 4 March 2023. The tenant made this application on 13 September 2023, 6 months past the statutory timeframe to bring this claim.
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the moisture ingress and drainage standard. This is a repair and maintenance issue. Exemplary damages for s45(1) of the RTA breaches
I have found that the landlord has committed 1 intentional breach of s45(1)(b) that resulted in the tenant living conditions that were unhealthy and that he experienced considerable periods of stress, inconvenience, and loss of the amenity the tenant was paying rent to enjoy. The landlord did not offer any rent relief to the tenant at these times.
I find the landlord has committed this 1 unlawful act intentionally.
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) Residential Tenancies Act 1986.
I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $1,200.00 exemplary damages to the tenant, being one eighth of the maximum penalty available.
I have found that the landlord’s s45(1)(b) of the RTA breach was intentional and therefore s109(3) of the RTA provides for the Tribunal to award exemplary damages for these breaches. I award the tenant $500.00 in exemplary damages for the bathroom leak breach.
Section109(2)(b) of the RTA places a limit on the Tribunal’s jurisdiction to award exemplary damages when an application for exemplary damages is made for any breach more than 12 months after the date of commission of the unlawful act. All of the landlord’s other s45(1) of the RTA breaches fall into this restriction period. Was the premise an unlawful residential premise and should the tenant’s rent be reimbursed (s78A of the RTA)?
The tenant claims that the premises are unlawful residential premises as he had no separate address, letter box or rubbish bins for his unit. The landlord produced the Auckland Council rating records that show the entire property as one address, but the land use was listed as multi-unit. The tenant says he was asked to use Mr Elsmore’s bins at the start of the tenancy and part way through he was asked to use the landlady’s bins. There is also not a separate power and water meter for the premise.
He stated that between his flat and the flat next door there is a thick concrete wall that acts as a fire wall.
The landlord confirmed that she had not been made aware during the sale and purchase process that the three separate units were not all lawfully allowed to be used as separate residential premises and did not make any such enquiries when she had looked to purchase the property. The law
Section 45(1)(c) of the RTA confirms the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 45(1A) of the RTA confirms that any breach of s45(1)(a) to (ca) of the RTA is declared to be an unlawful act.
Schedule 1A of the RTA confirms that the Tribunal may award exemplary damages for intentional breaches of s45(1)(a) to (ca) of up to a maximum of $7,200.00.
Section 78A(2) defines an unlawful residential premises as: “a residential premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation) and where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation”.
Section 56A of the RTA confirms: (1)A tenant of premises that at the start of the tenancy were, and that remain, unlawful residential premises may terminate the tenancy by giving not less than 2 days’ notice to the landlord. (2)Without limiting subsection (1), a landlord or a tenant may apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful residential premises. (3)The Tribunal may make the order if section 78A applies and the Tribunal is satisfied that it would be inequitable to refuse to make an order terminating the tenancy.
Where a premise is declared to be an unlawful premise, s78A(4)(a) of the RTA allows the Tribunal to require the landlord to repay to the tenant(s) of all or part of the rent the tenant(s) have paid for the duration of their tenancy.
Section 78A(3)(a) of the RTA confirms: Despite anything to the contrary elsewhere in the RTA, (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, the Tribunal has found the following types of premise to be an unlawful residential premise under Section 78A of the RTA: a. A premises that has never had resource nor building consent; b. Minor dwelling that never had resource consent; c. Minor dwelling that is not consented for sleeping; d. Minor dwelling that does not have CCC or COA; e. A rental property that does not comply with the Building Act 2004; f. A premises that does not comply with the 1947 Housing Improvement Regulations; g. A premise that does not comply with the Building Code.
A landlord is obliged to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes (section 36 RTA). Analysis and findings
The Council documents record that the premises were of an age that none of them required a code of compliance as they were built before the Building Act 2004 was enacted. However, all building work in New Zealand must meet the performance standards set by the Building Code, even if it does not need a consent.
The Building Code sets clear expectations of the standards buildings should meet. It covers: a. structural stability; b. fire safety; c. access; d. moisture control; e. durability; f. services and facilities; and g. energy efficiency.
The Building Code states how a building must perform in its intended use, rather than describing how the building must be designed and constructed.
The tenant has provided plans, resource consent documents from Auckland Council and a planner’s report, dated 16 August 2022, that states the resource consent was only ever given for the two dwellings and the garage in that premise and the new two storey duplex constructed at the eastern portion of the property. The sleep out the tenant rented was not part of the consented buildings.
I am satisfied that the premise is more likely than not an unlawful residential premise, based on the evidence provided to the Tribunal. The tenant has had the amenity of the tenancy since 4 December 2021 and did not raise this issue with the landlord until this hearing.
I find that the tenant could have applied to the Tribunal at any time during his tenancy to end the tenancy if he had been suffering any loss of amenity, stress or inconvenience from renting an unlawful residential premise and he did not. As such, I consider that it would be inequitable to compensate him for rent he paid to enjoy the premise he rented for 20 months 2 weeks without ever raising any issue about whether the premise was lawful.
I dismiss the tenant’s claim for a rent rebate based on the late unlawful residential premise claim.
The landlord noted that the tenant is barred from claiming exemplary damages for this breach by s109(2)(b) of the RTA ,which states that a party may not apply for exemplary damages for a breach of the RTA 12 months or more after the date of commission of the unlawful act. No exemplary damages are awarded for the breach either. Breach of privacy and quiet enjoyment
[The tenant] claims the landlord has harassed him and breached his quiet enjoyment of the premise.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However, Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
The tenant confirmed that the basis for this claim was: a. The chainsaw noise outside kitchen window on 16 August 2023; b. Contractor noise outside kitchen window on 11 August 2023; c. Digging by kitchen window on 11 August 2023; and d. The incident with the landlord’s ex-partner on 19 September 2022.
The tenant provided videos of the chainsaw, contractor and digging noises that relate to these first three claims of breach of the tenant’s quiet enjoyment. The tenant says he was not given any notice of this work being done around the property and that it interfered with his ability to rest and relax and to undertake some photographic works. The landlord says she was trimming the tree herself with secateurs as the tenant had told her she could only undertake essential repairs as he wanted some peace before he moved out. She says that she was making an ornamental garden and Ms Talayus Jones had made it clear the trees/shrubs/weeds needed to be cleared urgently. Further, the landlord says the trees/shrubs were located in a common area as the garden was between the tenant’s place and her ex-husband’s place.
.Excessive noise from work on a rental property can be a breach of quiet enjoyment, as it interferes with a tenant's right to peaceful and comfortable living. While landlords have the right to access the property for repairs and maintenance, this right is not absolute and must be balanced with the tenant's right to quiet enjoyment. The landlord accepts the noise may have been inconvenient but says the noise was not excessive and that noises such as these are a foreseeable part of the clearing/pruning of trees and shrubs that the tenant had claimed were so important to address urgently.
In this case, I am not of the view that the actions of the having the trees, shrubs and weeds cleared can be deemed to be harassment based on the definitions above. Because I do not consider this is a situation of harassment, exemplary damages cannot be ordered for these three claims.
The tenant says that on 19 September 2022, the landlord’s brother Terry and her ex-partner Wayne came storming out of Wayne’s apartment and walked towards him threateningly, mocking was the tenant was saying by repeating it sarcastically and yelling “You clearly don't like it here so PISS OFF!!! You girl!!!!” The tenant was shocked and distressed and said the whole situation with the hot water issue and the way it was being dealt with by these men was toxic. The landlord was aware of the comments and told the tenant “Wayne wouldn't be doing that again”.
Again, I am not of the view that the actions of landlord’s brother and ex-husband on 19 August 2022 can be deemed to be the landlord harassing the tenant, based on the definitions above. The landlord took steps to caution these men when the issue was raised with her about their inappropriate conduct. Because I do not consider this is a situation of harassment, exemplary damages cannot be ordered for this claim.
For the reasons set out above, the tenant’s claims for exemplary damages for breach of his quiet enjoyment is dismissed. Rent increase- 1 weeks notice
The tenant says he was given notice of the rent going up on 24 May 2023 and that that this unlawful handwritten rent increase letter was not dated properly and had no address.
The tenant says he checked if this $20.00 per week increase was to start the next week and the landlord said yes. There is a text message that confirms this.
The tenant says he started making the additional $20.00 per week payment the following week, being $320.00 per week.
Section 24(1)(c) of the RTA provides that the date upon which the increased rent shall become payable shall be not less than 60 days from the date of the notice. The landlord breached this obligation.
I find that the tenant should be awarded back the overpaid rent for the breach of the landlord’s obligations to provide 60 days’ notice of any rent increase and award reimbursement of overpaid rent of $20.00 per week from 24 May 2023 to 19 August 2023 (12 weeks and 3 days) being a rent rebate of $248.57 for the breach.

Did the landlord breach her duties on receipt of the bond?

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
Section 19 (1) of the RTA requires a landlord to send any bond payment to the Bond Centre within 23 working days after the payment is received and to provide a receipt to the tenant for any bond amount paid.
Breaching one or both of this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 for one or both breaches if the breaches are proven to be intentional. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenant confirmed the $300.00 bond was paid before he moved in, and he says he never received a receipt for this bond and it was never lodged with the Bond Centre.
The landlord produced a receipt for the $300.00 bond, dated 9 December 2021 and stated that when the tenant paid her the bond, she thought he was a flatmate and put the bond money into the rent account. When the tenancy ended, she says the tenant had not paid the last week’s rent, so she kept the bond to cover the rent arrears.
The tenant claims he has never seen the receipt produced by the landlord in evidence. She confirmed he had asked for the receipt as he was on a sickness benefit and needed the receipt for WINZ records.
The tenant also says the bond went up to $350.00 at some time but did not produce any evidence that he had paid the additional $50.00 or when.
I am satisfied that the landlord has proven that it is more likely than not she issued the tenant with a receipt for the bond on his request as WINZ required it but has admitted that she never lodged the bond with the Bond Centre. I find she has 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) Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by not lodging the bond within the required timeframe and intentionally compounding that breaches by failing to lodge the bond after the tenant lodged his application with the Tribunal on 13 September 2023.
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) Residential Tenancies Act 1986.
I am satisfied it is in the public interest to penalise a landlord that breaches its s19(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $750.00 exemplary damages to the tenant, being half of the maximum penalty available. Unreasonable withholding of consent to minor changes to the premises
[The tenant] claims the landlord has unreasonably withheld consent to a minor change to the premises.
It is unreasonable for a landlord to withhold consent to a minor change to premises. See 42B(1) Residential Tenancies Act 1986
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 See section 42B(3) and Schedule 1A Residential Tenancies Act 1986.
The tenant says he sent the landlord a text asking if he could put up the plastic roof and got no reply, so he went ahead and installed an interim plastic roof. The tenant says the landlord did not raise any issue with this minor modification.
I do not find that there is sufficient evidence to prove the landlord unreasonably withheld consent for any minor modification and dismiss the claim accordingly. Failure to keep proper business records
[The tenant/s] claims the landlord has not kept records of rent and bond paid.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 30(2) and Schedule 1A RTA).
The tenant says the landlord did not keep proper business records that showed the rent periods, the amounts due, the due dates for rent payments, the date payments were made by the tenant and the amounts the tenant paid and they were required to do so. If he wanted to check whether deductions had been made for reimbursement of costs incurred by him related to the tenancy, these records were not readily available.
Proper business records mean records that are orderly, to a high standard 6 , and contemporaneous with payments made by the tenants 7 .
The landlord confirmed that she keeps bank statements and a diary of payments, and the tenant never asked for any rent summary record during his tenancy so she didn’t think she had to provide them.
The tenant says he gave the landlord a breakdown of what was being paid for water, rent and power so she knew what he was paying and the reason for the payments but at no time did she tell him he owed her money, nor did he ever give him a rent summary to prove that her owed her any monies. It appeared to him that the landlord was avoiding keeping proper documentation in relation to the tenancy to evade tax.
I find the landlord has failed to keep accurate business records that are of a high standard, in accordance with s30 of the RTA, and she has 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.
I find the landlord intentionally failed to retain accurate business records to a high standard and that it would be just to require the landlord to pay a sum of $350.00 in exemplary damages because: a. The landlord should have reasonably known that it is required by law to keep accurate business records that allows it to provide the tenants with accurate rent summaries in a reasonable timeframe, and it did not. b. The tenant is entitled to rely on accurate business records being kept by their landlord for 7 years so that they can be assured their rent payments are being accounted for accurately and they can seek confirmation of how much rent they owe or have overpaid at any given time; c. t is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and 6 Kumar v Capper NZTT Auckland TT1004/90, 12 March 1991 at [8]. 7 Brown v Steele [2002] DCR 338 at [19]. d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations keep accurate business records of a high standard for the protection of both parties’ interests.
I also find that the Tribunal is not statutorily barred from awarding these exemplary damages and the tenant only discovered this breach at the end of his tenancy. Interference with services to the premises
[The tenant] claims the landlord has interfered with the internet services to the premises.
A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.
The tenant claims the landlord interfered with the supply of internet services to the premises and for a few days the internet was off because the landlord had- changed the modem and didn’t give the tenant the password.
The tenant was unable to give me any dates for this breach or proof of it. He says he had to go to the landlord’s house to get the new password.
The landlord confirmed there was trouble with the signal and that she had to get fibre installed. She stated that the tenant was informed and when she rang him to give him the new password he did not answer and was not at home when she went to talk to him. The landlord asked her ex-husband to tell the tenant the password when he next saw him at home.
I do not find that there is sufficient evidence to prove the landlord unreasonably interfered with the internet services and dismiss the claim accordingly. Did the landlord provide the statutorily required healthy homes, smoke alarm and insurance information in the tenancy agreement?
The tenant claims that the landlord has breached her obligations under section 13A(1A), 13A(1CA) and 13A(2) of the Residential Tenancies Act 1986.
Under section 13A(1A) the landlord must include in the tenancy agreement a statement, made and signed by the landlord that describes whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises and the details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises.
Under s13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping. This provision also requires the landlord to record how many smoke alarms are in the premise, when the smoke alarms were last tested and when they expire.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
If the landlord is unable to provide some or all the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Section 13A(2) states 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)).
Breaching the landlord’s s13A(1CA) and/or 13A(2) of the RTA obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant received a flat sharing agreement, that did not contain a healthy homes compliance statement, any of any of the required healthy homes standards information or why such information could not be provided or any smoke alarm or insurance information. As such, the tenants had no idea when they took on the tenancy, whether the premises were fully healthy homes compliant, whether any exemptions apply to the premises, whether there were smoke alarm(s) that were compliant with statutory requirements and whether the landlord had insurance that limited the tenant’s liability for costs associated with any careless or deliberate damages to the premise.
I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, pursuant to section 13A(1F)(a) of the RTA, the Tribunal may award up to a maximum of $750.00 in 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) Residential Tenancies Act 1986.
I am satisfied the landlord failed to provide the tenant with the required completed and signed healthy homes statements and smoke alarm information prescribed by sections 13A(1A),13A(1CA) and 45(1)(bb) of the RTA, or the insurance information prescribed by s13A(2) of the RTA.
I find the landlord intentionally breached 13A(1CA) of the RTA and that, although the Tribunal is statutorily barred from ordering exemplary damages for this breach, it would be just to require the landlord to pay a sum of $375.00 compensation because: a. The landlord should have reasonably known that she is required by to provide the tenants with healthy homes, smoke alarm and insurance information with a written tenancy agreement b. The tenant is entitled to rely on his statutory right to receive information about: i. whether the premise was healthy homes compliant and if it wasn’t, was it exempt from these requirements; ii. whether the premise has compliant smoke alarms, where they are located, when they were last tested and when they expire; and iii. If the landlord has tenant insurance that covers tenant related damage to the premise, what the policy covers and the excess that applies. c. t is in the interests of the tenants to receive compensation for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations ensure the tenants have healthy homes compliance information, smoke alarm information and insurance information given to them prior to the commencement of the tenancy so they can make an informed decision whether or not to rent a non-compliant premise.

Did the termination notice comply with the requirements of ss51 and 54 of the Act?

Was the termination notice lawful?

The tenant says the landlord breached her obligations under s51(2)(f) of the RTA and that the termination notice was unlawful.
Section 51(2) confirms: S51 Termination by notice (2)A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a)the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition; or (b)the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession; or (c)the landlord is not the owner of the premises and the landlord’s interest in the premises is due to end; or (d)the landlord or owner has acquired the premises to facilitate the use of nearby land for a business activity and— (i)that fact is clearly stated in the tenancy agreement; and (ii)the premises are required to be vacant of residential tenants to facilitate that use; or (e)the premises are to be converted into commercial premises for at least 90 days by the landlord or owner; or (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and. (ii)premises are to be demolished and the demolition is to begin, or material steps towards it are to be taken, within 90 days after the termination date. (2A)In subsection (2)(f) and (g), taking a material step means applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step.
The landlord provided a 90-day termination notice to the tenant on 9 June 2023, but the notice is dated 9 June 2003. The notice is confusing as it states the termination is because the landlord is having her grandson come to live with her to assist her, and that she must undertake renovations to the property. She also says the tenant can leave earlier if he wants. The letter makes her grandson moving in sound like the most compelling reason for terminating the tenancy and that he will be able to assist with the maintenance that needs doing.
In a further letter from the landlord, also dated 9 June 2023, the landlord that reiterates her grandson is moving in to assist her after the builder has undertaken inside maintenance work, such as installing a bathroom fan and new tiles and upgrading the kitchen and back door.
The tenant found two advertisements in Countdown advertising the property, so the tenant says this notice was unlawful as the landlord had no intention of moving her grandson into the premise. The landlord says the advertisement was for the flat behind her ex-husband’s unit.
A social worker from aged concern confirmed to me that she has visited the property recently and the landlord’s grandson lives in the unit the tenant occupied.
The landlord also says the tenant accepted the termination and said he would move by such and such date, he decided to go earlier and that was fine by her. She says she tried several times to get access to the property to get some works done and the tenant was difficult and asked her only to give notice for essential works, it had to be in a letter to be put in the letterbox and she could only make only one request a day.
She said that after she gave notice terminating the tenancy, the tenant wouldn’t let her or any contractors in at all.
The landlord’s grandson also gave evidence the tenant was difficult, and the landlord needed to get him out and end the tenancy as he was putting her under too much stress at the time. The landlord says the tenant was difficult with days he would allow access to contractors to come into the house. They had to come in on his terms and when he allowed it. He was “stressing her out” and she “had to get rid of him”. She also said she had been in for a property inspection and found the place dirty and she was having so much trouble she terminated the tenant because of access and the lack of cleanliness and tidiness of the premises and that when she terminated the tenancy she did so in accordance with the . conditions of the flat sharing agreement.
I am satisfied that the landlord did intend her grandson to move in and he did so, but she did not issue a notice giving 63 days termination of the tenancy pursuant to s51(1)(a) of the RTA. I am also satisfied that the premise did require major renovations, particularly in the kitchen, and it would not have been reasonably practicable for the tenant to remain in occupation while that work was undertaken. Therefore, I dismiss the tenant’s claim for unlawful termination of his tenancy.

Was the termination notice retaliatory?

The tenant says the termination notice was retaliatory and the landlord breached her s54 of the RTA obligations to him.
Section 54 of the RTA confirms that the Tribunal may declare the notice retaliatory and of no effect and states: (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
The Tribunal’s powers under s 54 to declare a termination notice to be of no effect requires proof on the balance of probabilities that: The giving of the notice [in this case by the landlord] was motivated wholly or partly by the proposed exercise of a tenant of any right ... conferred by the tenancy agreement ....
Section 51 of the Act allows tenants to make claims in the Tribunal for alleged breaches by the landlord, without fear the landlord will retaliate by ending their tenancy, wholly or partly because the tenants have exercised their rights and have sought remedies conferred on them by the tenancy agreement and/or any statute and/or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
If the landlord issuance of the termination notice was motivated by reason of the tenants asserting their rights, that need not have been the landlord’s sole motivation. It can be one of several reasons that motivated the landlord to otherwise lawfully exercise its right to terminate the tenancy, under s51.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986. Application of the law to the facts
The landlord says she tried several times to get access to the property to get some works done and the tenant was difficult and asked her only to give notice for essential works, it had to be in a letter to be put in the letterbox and only one request a day. After the landlord gave notice terminating the tenancy, he wouldn’t let her or any contractors in at all.
The landlord’s grandson gave evidence the tenant was “difficult” and the landlord “needed to get him out and end the tenancy”.
The landlord also confirmed the tenant’s 8 June 2023 28 days to remedy notice had stressed her out and she was sick of him raising issues. Further, she confirmed she had been in for a property inspection and found the place dirty and she was having so much trouble that she decided to terminate the tenancy as she had to get him out.
The landlord says on 8 June 2023, the day that Ms Jones came and gave her the 28-day notice list of issue, the landlord was talking to her grandson that night and was crying and the grandson said, “you have to get him out and I will help you to get him out and the next day I gave him notice”. Further, she said, “even Wayne told him to buzz off as I was in tears” and “he had not friends and was so difficult that none of the tradesmen wanted to work while he was at the premise”. She told me that she could not handle it any longer as she was “walking on eggshells”. She also stated that she “gave the tenant a nice reference as she wanted him to go” and that she “I tried so hard, and he is making me look like a terrible person”.
She also said she “lived in fear of him” and she “was relieved after he left”. Because she “couldn’t go into my garden without notice. It’s a common area. I should feel comfortable in my own home”. In addition, she stated “I was so careful of what I did and everything I did was wrong. I just wanted him out”.
I have considered all the evidence provided by the parties and am satisfied: a. The landlord was primarily motivated to end the tenancy on 9 June 2023 in retaliation for the tenant raising the repair and maintenance issues on 8 June 2023; and b. While the termination notice meets the requirements of s51(2) and the reason given for the termination appears genuine, I find that the giving of the notice by the landlord was motivated partly by the proposed exercise by the tenant of his contractual and statutory rights to live in a premise that was repaired and maintained to a reasonable standard in all the circumstances.
I am satisfied it would be just to require the landlord to pay $2,166.66 in exemplary damages (one third of the maximum penalty available) because: a. the landlord knew she had issued notice to end the tenancy as she had become stressed out by the 28 day notice the tenant issued for her to remedy a number of repair and maintenance issues and that he had been stressing her out for a while with his complaints about the condition of the premise and her grandson had come up with the idea of moving in to allow her to end the tenancy the day after reeving the 28 notice to remedy; b. the tenant suffered the stress and inconvenience associated with having to find a new place to live at a time when it was not easy to find alternative accommodation; c. It is in the interests of the tenant to receive exemplary damages for the stress and inconvenience of having to move; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to give tenants notice for lawful purposes and not to give notice because they are motivated wholly or partly by the tenants exercising their rights under the tenancy agreement or any Act, or by any complaint they made against the landlord. Reimbursement of filing fee
Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name Suppression
The tenant applies for non-publication of his name and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication is ordered.
The landlord has also applied for non-publication of her name and identifying details. I consider publication is in the public interest or justified because of the landlord’s and her ex-husband’s conduct during the tenancy, which was also demonstrated during the hearing days.
The landlord’s application for name suppress is declined.
I have also decided to publish the address of the premise in case the landlord tried to rent it out to another member of the public, other than family, as a deterrent to persons renting what appears to be an unlawful residential premise and to ensure that other potential renters understand the type of behavioural conduct they may be subjected to by the landlord and her ex-husband.

Tenancy Tribunal case 4667069 — Exemplary damages at 139B Waipuna Road East, Mount Wellington, Auckland

At a glance

Tenancy Tribunal case 4667069 — Exemplary damages at 139B Waipuna Road East, Mount Wellington, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

Did the landlord breach her duties on receipt of the bond?

Did the termination notice comply with the requirements of ss51 and 54 of the Act?

Was the termination notice lawful?

Was the termination notice retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

Did the landlord breach her duties on receipt of the bond?

Did the termination notice comply with the requirements of ss51 and 54 of the Act?

Was the termination notice lawful?

Was the termination notice retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions