What was the outcome of Tenancy Tribunal case 4672194?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4672194?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4672194?

The primary dispute was Mould & damp. Related themes: State of repair, Property damage, Leaks, Compensation.

Where can I read the official tribunal order for case 4672194?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9532971-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4672194?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4672194?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4672194?

The primary dispute was Mould & damp. Related themes: State of repair, Property damage, Leaks, Compensation.

Where can I read the official tribunal order for case 4672194?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9532971-Tenancy_Tribunal_Order.pdf.

40 Skerten Avenue, Hornby, Christchurch 8042 Tenancy Tribunal Case 4672194 — Mould & damp

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40 Skerten Avenue, Hornby, Christchurch 8042 Tenancy Tribunal Case 4672194 — Mould & damp | TenantCheck

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Professionals Christchurch Limited must pay Hayley Patricia Marshel $3,000.00 immediately, being compensation for the loss of use and enjoyment of the tenancy and other losses due to mould and dampness caused by repairs not being done.
The application for a declaration that the notice to terminate the tenancy was retaliatory is dismissed.
The application for a work order is dismissed.

Reasons

Both parties attended the hearing. Ms Johnson and Mr Williams represented the landlord.
I heard evidence from the parties and from a witness for the landlord, real estate agent Mr Lloyd. Background
The tenancy is a long tenancy; it started in November 2017. Before that, the tenant resided in the premises for about 4 years under other arrangements. Together she has lived at the premises for around 10 years.
The tenant became increasingly concerned about mould and dampness in a bedroom (the 4 th bedroom) and in the conservatory especially from mid November 2022.
The evidence establishes that the probable cause of leaking in the bedroom was holes in the roof allowing water to ingress causing obvious water mark staining, and dampness.
In the conservatory, despite repair attempts, water continues to ingress not from the roof but from pooling and run back from outside.
The tenant alleges that the landlord has failed to maintain and repair the premises.
The tenant has also raised other issues, her bond and the validity of a rent increase.
The tenant sent the landlord a 14-day notice for repairs on 22 August 2023. Later that day, she received a 90-day notice terminating the tenancy. She considers the termination notice to have been given in retaliation for her 14-day repair notice. Issues
The issues the Tribunal must determine are these: •Was the notice to terminate the tenancy a retaliatory notice? •Should the Tribunal make work orders? •Should the Tribunal award the tenant compensation? •Was the rent increase valid? •Did the landlord fail to maintain and repair the premises? •Is the tenant liable for claims against her bond?

Was the notice to terminate the tenancy a retaliatory notice?

Section 54 of the Residential Tenancies Act 1986 (RTA) enables the Tribunal to declare a notice to terminate a tenancy of no effect if 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 the RTA or any other complaint by the tenant against the landlord relating to the tenancy.
At first blush, this notice to terminate might appear to have been in retaliation for the tenant’s 14-day repair notice. It was given very soon after the tenant served that notice.
However, the evidence I heard persuades me that the notice was not retaliatory. The owner of the premises had already enquired of Mr Lloyd the difference between selling the premises ‘as is where is’, or with the repairs completed, before notice to terminate the tenancy was given.
The landlord produced evidence that the replacement of the roof and the repair of the conservatory would amount to about $39,000.00, a cost the owner could not afford.
Mr Lloyd confirmed that he has instructions to proceed with a sale once a date of vacant possession is known at which point, he will sign a sales listing agreement with the owner of the premises. He confirmed that the property will certainly be placed on the market for sale.
While the catalyst for the decision to sell the property might have been the tenant’s 14-day repair notice, I do not find that the landlord (the owner) acted in retaliation. He was simply unable to comply with the 14-day notice due to the cost of the repairs and he decided he would sell the premises.

Should the Tribunal make work orders?

Given that the notice to terminate the tenancy was not given in retaliation, but for legitimate reasons, the tenancy will end on 19 November 2023 which is the end of the notice period.
The Tribunal will not make a work order as the tenancy will soon end. The landlord (the owner) intends to sell the property ‘as is where is’.

Should the Tribunal award the tenant compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses and for the loss of use of and therefore enjoyment of the tenancy.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must take into account the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The evidence produced by both parties (including the report from the Christchurch City Council Environmental Health Officer; a report from H-T Contracting; and photos) establishes that there was leaking in the 4 th bedroom and conservatory with those rooms being restricted in their use. The tenant also referred to restrictions using the ‘sleepout’ although the evidence is divided about how that space is correctly defined.
The tenant’s claim for compensation of $8,000.00 for the restricted use of those rooms based on a rent refund of 50% from 22 November 2022 is unrealistic.
Rent can only abate when the premises are destroyed or so badly damaged (in whole or in part) so as to be uninhabitable. That is not the case here. Even the 4 th bedroom can be used in part, for storage.
It is difficult to prove that health issues are the direct result of the conditions of a house. The tenant said she suffered pneumonia and her children had respiratory conditions which were due to living in the mouldy conditions.
I can understand why the tenant believes that there is a causal connection, but while possible, the evidence does not establish that on the balance of probabilities.
The tenant said that many of her children’s toys were damaged due to mould as were some of her other possessions, the full extent of which she is still unsure.
Compensation arising from a breach such as this is usually assessed globally by the Tribunal. In other words, the Tribunal seeks to assess what would be reasonable compensation for all the effects of the leaking in the bedroom and the conservatory that restricted the use of those rooms and caused the other losses explained by the tenant.
Without receipts proving the purchase cost of particular chattels it is not possible to be precise. And the Tribunal must also consider depreciation: what is the value of a damaged toy of a certain age?
In such cases, the Tribunal uses its experience as a guide in order to compensate, so far as it is possible, like cases with like.
In my assessment, having considered all the evidence, I find that compensation of $3,000.00 would be objectively reasonable for the tenant’s loss of enjoyment and use of parts of the premises and the damage to toys and chattels due to repairs not done resulting in leaking, dampness, and mould.

Was the rent increase valid?

The landlord gave notice of a rent increase which the tenant objected to because of the delayed repair issues. The landlord has not implemented the rent increase. There is no issue for the Tribunal to determine.

Did the landlord fail to maintain and repair the premises?

The landlord produced evidence that shows the owner authorised repairs and maintenance each year. Generally, it seems that the landlord has attended to repair and maintenance issues.
Although the landlord has not had the roof replaced and the conservatory repaired, the cost of those repairs is one the owner cannot afford. He has decided to sell the property for that reason.
Had the landlord continued to rent the premises but failed to repair the roof and conservatory, the Tribunal would have found a breach of the landlord’s responsibility to maintain the premises in a reasonable state of repair, amounting to an unlawful act.
The cost of the required repair work and the owner’s decision to sell the property means that the Tribunal cannot make a separate order for a failure to repair. The consequences of the leaking roof and the ingress of water into the conservatory are best addressed by an award of compensation for a loss of use and enjoyment of the premises.

Is the tenant liable for claims against her bond?

This claim cannot be addressed by the Tribunal now. The bond belongs to the tenant in law until the landlord proves a claim against it. If the landlord has claims against the bond at the end of the tenancy, in the absence of an agreement, it would have to make a Tribunal application for any claimed costs. Any bond dispute would be decided then. Result
The landlord will pay the tenant compensation of $3,000.00 for her loss of use of and enjoyment of the tenancy due to leaking. That caused dampness and mould limiting her use of a bedroom and the conservatory and causing damage to some chattels.
The application for a declaration that the notice to terminate the tenancy should be set aside as retaliatory is dismissed. The tenancy will terminate at the end of the notice period.
The remainder of the tenant’s claims are dismissed.
I make no order for reimbursement of the filing fee as the application is only partly successful. Name suppression
On my enquiry, neither party sought a name suppression order.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Professionals Christchurch Limited must pay Hayley Patricia Marshel $3,000.00 immediately, being compensation for the loss of use and enjoyment of the tenancy and other losses due to mould and dampness caused by repairs not being done.
The application for a declaration that the notice to terminate the tenancy was retaliatory is dismissed.
The application for a work order is dismissed.

Reasons

Both parties attended the hearing. Ms Johnson and Mr Williams represented the landlord.
I heard evidence from the parties and from a witness for the landlord, real estate agent Mr Lloyd. Background
The tenancy is a long tenancy; it started in November 2017. Before that, the tenant resided in the premises for about 4 years under other arrangements. Together she has lived at the premises for around 10 years.
The tenant became increasingly concerned about mould and dampness in a bedroom (the 4 th bedroom) and in the conservatory especially from mid November 2022.
The evidence establishes that the probable cause of leaking in the bedroom was holes in the roof allowing water to ingress causing obvious water mark staining, and dampness.
In the conservatory, despite repair attempts, water continues to ingress not from the roof but from pooling and run back from outside.
The tenant alleges that the landlord has failed to maintain and repair the premises.
The tenant has also raised other issues, her bond and the validity of a rent increase.
The tenant sent the landlord a 14-day notice for repairs on 22 August 2023. Later that day, she received a 90-day notice terminating the tenancy. She considers the termination notice to have been given in retaliation for her 14-day repair notice. Issues
The issues the Tribunal must determine are these: •Was the notice to terminate the tenancy a retaliatory notice? •Should the Tribunal make work orders? •Should the Tribunal award the tenant compensation? •Was the rent increase valid? •Did the landlord fail to maintain and repair the premises? •Is the tenant liable for claims against her bond?

Was the notice to terminate the tenancy a retaliatory notice?

Section 54 of the Residential Tenancies Act 1986 (RTA) enables the Tribunal to declare a notice to terminate a tenancy of no effect if 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 the RTA or any other complaint by the tenant against the landlord relating to the tenancy.
At first blush, this notice to terminate might appear to have been in retaliation for the tenant’s 14-day repair notice. It was given very soon after the tenant served that notice.
However, the evidence I heard persuades me that the notice was not retaliatory. The owner of the premises had already enquired of Mr Lloyd the difference between selling the premises ‘as is where is’, or with the repairs completed, before notice to terminate the tenancy was given.
The landlord produced evidence that the replacement of the roof and the repair of the conservatory would amount to about $39,000.00, a cost the owner could not afford.
Mr Lloyd confirmed that he has instructions to proceed with a sale once a date of vacant possession is known at which point, he will sign a sales listing agreement with the owner of the premises. He confirmed that the property will certainly be placed on the market for sale.
While the catalyst for the decision to sell the property might have been the tenant’s 14-day repair notice, I do not find that the landlord (the owner) acted in retaliation. He was simply unable to comply with the 14-day notice due to the cost of the repairs and he decided he would sell the premises.

Should the Tribunal make work orders?

Given that the notice to terminate the tenancy was not given in retaliation, but for legitimate reasons, the tenancy will end on 19 November 2023 which is the end of the notice period.
The Tribunal will not make a work order as the tenancy will soon end. The landlord (the owner) intends to sell the property ‘as is where is’.

Should the Tribunal award the tenant compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses and for the loss of use of and therefore enjoyment of the tenancy.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must take into account the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The evidence produced by both parties (including the report from the Christchurch City Council Environmental Health Officer; a report from H-T Contracting; and photos) establishes that there was leaking in the 4 th bedroom and conservatory with those rooms being restricted in their use. The tenant also referred to restrictions using the ‘sleepout’ although the evidence is divided about how that space is correctly defined.
The tenant’s claim for compensation of $8,000.00 for the restricted use of those rooms based on a rent refund of 50% from 22 November 2022 is unrealistic.
Rent can only abate when the premises are destroyed or so badly damaged (in whole or in part) so as to be uninhabitable. That is not the case here. Even the 4 th bedroom can be used in part, for storage.
It is difficult to prove that health issues are the direct result of the conditions of a house. The tenant said she suffered pneumonia and her children had respiratory conditions which were due to living in the mouldy conditions.
I can understand why the tenant believes that there is a causal connection, but while possible, the evidence does not establish that on the balance of probabilities.
The tenant said that many of her children’s toys were damaged due to mould as were some of her other possessions, the full extent of which she is still unsure.
Compensation arising from a breach such as this is usually assessed globally by the Tribunal. In other words, the Tribunal seeks to assess what would be reasonable compensation for all the effects of the leaking in the bedroom and the conservatory that restricted the use of those rooms and caused the other losses explained by the tenant.
Without receipts proving the purchase cost of particular chattels it is not possible to be precise. And the Tribunal must also consider depreciation: what is the value of a damaged toy of a certain age?
In such cases, the Tribunal uses its experience as a guide in order to compensate, so far as it is possible, like cases with like.
In my assessment, having considered all the evidence, I find that compensation of $3,000.00 would be objectively reasonable for the tenant’s loss of enjoyment and use of parts of the premises and the damage to toys and chattels due to repairs not done resulting in leaking, dampness, and mould.

Was the rent increase valid?

The landlord gave notice of a rent increase which the tenant objected to because of the delayed repair issues. The landlord has not implemented the rent increase. There is no issue for the Tribunal to determine.

Did the landlord fail to maintain and repair the premises?

The landlord produced evidence that shows the owner authorised repairs and maintenance each year. Generally, it seems that the landlord has attended to repair and maintenance issues.
Although the landlord has not had the roof replaced and the conservatory repaired, the cost of those repairs is one the owner cannot afford. He has decided to sell the property for that reason.
Had the landlord continued to rent the premises but failed to repair the roof and conservatory, the Tribunal would have found a breach of the landlord’s responsibility to maintain the premises in a reasonable state of repair, amounting to an unlawful act.
The cost of the required repair work and the owner’s decision to sell the property means that the Tribunal cannot make a separate order for a failure to repair. The consequences of the leaking roof and the ingress of water into the conservatory are best addressed by an award of compensation for a loss of use and enjoyment of the premises.

Is the tenant liable for claims against her bond?

This claim cannot be addressed by the Tribunal now. The bond belongs to the tenant in law until the landlord proves a claim against it. If the landlord has claims against the bond at the end of the tenancy, in the absence of an agreement, it would have to make a Tribunal application for any claimed costs. Any bond dispute would be decided then. Result
The landlord will pay the tenant compensation of $3,000.00 for her loss of use of and enjoyment of the tenancy due to leaking. That caused dampness and mould limiting her use of a bedroom and the conservatory and causing damage to some chattels.
The application for a declaration that the notice to terminate the tenancy should be set aside as retaliatory is dismissed. The tenancy will terminate at the end of the notice period.
The remainder of the tenant’s claims are dismissed.
I make no order for reimbursement of the filing fee as the application is only partly successful. Name suppression
On my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4672194 — Mould & damp at 40 Skerten Avenue, Hornby, Christchurch 8042

At a glance

Tenancy Tribunal case 4672194 — Mould & damp at 40 Skerten Avenue, Hornby, Christchurch 8042

At a glance

Claims & awards

Order

Reasons

Was the notice to terminate the tenancy a retaliatory notice?

Should the Tribunal make work orders?

Should the Tribunal award the tenant compensation?

Was the rent increase valid?

Did the landlord fail to maintain and repair the premises?

Is the tenant liable for claims against her bond?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Was the notice to terminate the tenancy a retaliatory notice?

Should the Tribunal make work orders?

Should the Tribunal award the tenant compensation?

Was the rent increase valid?

Did the landlord fail to maintain and repair the premises?

Is the tenant liable for claims against her bond?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions