How much money was awarded in case 4673310?

Property Damage: $3,000.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimburse Plumbing Costs: $126.00 awarded to tenant

What type of tenancy dispute was case 4673310?

The primary dispute was Property damage. Related themes: Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4673310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9617466-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 4673310?

Property Damage: $3,000.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimburse Plumbing Costs: $126.00 awarded to tenant

What type of tenancy dispute was case 4673310?

The primary dispute was Property damage. Related themes: Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4673310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9617466-Tenancy_Tribunal_Order.pdf.

316B Waitao Road, Waitao, RD 5, Tauranga 3175 Tenancy Tribunal Case 4673310 — Property damage

Q: What was the outcome of Tenancy Tribunal case 4673310?

The tribunal order states: Natanael Nazell and Gunnel Nazell must pay Vikki May Wright and Craig Leslie

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Order

Claims and awards in Tenancy Tribunal application 4673310 — net $3,846.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failure to repair and maintain	$3,000.00	failure to repair and maintain
Exemplary damages: no insulation statement	$700.00	no insulation statement
Reimburse plumbing costs	$126.00	Reimburse plumbing costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,846.44
Total payable by Landlord to Tenant	$3,846.44

Natanael Nazell and Gunnel Nazell must pay Vikki May Wright and Craig Leslie Wright $3,846.44 immediately, calculated as shown in table below. These costs may be set off against rent payable.

The termination notice dated 8 September 2023 is invalid and of no effect. For clarity, the tenancy continues.

The landlord must carry out the following work to the premises, which must be completed by Friday 15 December 2023: a. Outside drain near kitchen to be cleared and functioning fully. b. Insulation report obtained from a professional on compliance with the insulation standards, and install any insulation required to meet the standards. c. All mould cleaned from ceilings and any other high areas in the house.

If the landlord fails to comply with Order 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $5,000.00. These costs may be set off against rent payable.

All other of the tenants’ applications are dismissed.

By agreement of the parties, the landlord is to inspect the premises at 11am on Saturday 11 November 2023.

Reasons

The Wrights rented a house in rural Welcome Bay from the Nazells. The tenancy started on 17 May 2022.

During 2023 the Nazells were away overseas for 5 and a half months. No agent was appointed in their absence. Issues arose with the property which the Wrights conveyed to Mr Nazell in Whatsapp messages. Mr Nazell gave instructions on how the Wrights might fix the problems.

The Wrights gave the landlord two breach notices to carry out repairs dated 12 May 2023 and 6 July 2023.

In August 2023 Mr Nazell sent his friend Mr David Steel to the premises to carry out an inspection.

On 8 September 2023 the landlord returned from overseas and gave the tenants a termination notice with the tenancy due to expire on 6 December 2023.

The tenants applied to the tribunal for work orders, damages for the condition of the premises and breaching their privacy and challenging the validity of the termination notice.

The hearing was held on Friday 3 November 2023. Mr Nazell attended the hearing for the landlord.

Both the Wrights attended the hearing. They are deaf so sign language interpreters (Mr Hodson and Ms Bird) translated from sign language in to spoken English. Issues

The issues for me to determine are: (a) Is the termination notice valid? (b) Has the landlord failed to repair and maintain the premises to a reasonable standard and comply with building health and safety laws as regards: the chimney, the window latch and pane, insulation, mould, loose shower hose, outside kitchen drain, and hotwater cylinder? (c) If so, should a work order be made and/or damages be granted? (d) Has the landlord interfered with the tenants’ right to reasonable peace, privacy or comfort in the use of the premises?

Is the termination notice valid?

Mr Nazell gave the tenants a 90 day notice to end the tenancy specifying the reasons as: “This notice of eviction is given due to the fact that we have decided to renovate and possibly sell the property.”

Initially at the hearing the Wrights believed they had an agreement to stay on in the premises for another year and were looking for another place to rent, so they did not wish to challenge the termination notice. However Mr Nazell says the extension was not an offer but an idea that was explored by him with the tenants. Any offer for an extension has been revoked because his wife and co- owner of the property does not agree to an extension of the term of the tenancy.

I am satisfied that the notice is compliant with the technical requirements: it is in writing; it identifies the premises to which it relates; it specifies the expiry date for ending of the tenancy; and it gives reasons. Although it is not signed by the landlord, their name is typewritten and it is clear the notice is from the landlord so the tenants are not misled in any way. See sections 51(3) and 51(4) Residential Tenancies Act 1986 (RTA).

A landlord may terminate a periodic tenancy by giving 90 days notice to end a tenancy in limited circumstances. The relevant grounds are where: (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) 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. the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date. See sections 51(2)(a) and (f) RTA.

The minimum period of notice of 90 days including for service, has been given. The sole remaining issue is whether the reasons for giving the notice have been established.

Mr Nazell made it clear that any decision to sell the property would occur after renovation work. No steps have yet been taken to commence renovation work, and the extent of the renovation work is not precise. Mr Nazell said it would occur in stages with the first steps being the installation of double glazing and renovation of the two bathrooms. He says he would then renovate the kitchen, and re-roof the house. This latter work would be a major undertaking of resources and time. I find the completion of the first stage of renovation work before 6 March 2024 is highly unlikely, let alone all of the proposed renovations. This is only reinforced with the Christmas holiday period intervening when builders are on annual leave. So the property could not be placed on the market by 6 March 2023, and therefore the sale is not a valid reason for the termination notice.

The second ground to consider is whether the proposed renovations meet the requirements for termination.

The first criteria to be met is that the proposed work involves ‘extensive’ refurbishment, reports or redevelopment. Extensive denotes major works.

Mr Nazell says the house was built in 1987. He says the bathrooms and kitchen are functional but old fashioned; and the roof is also functional but some tiles have buckled in, although it is not leaking.

During the first stage of installing double glazing and renovating bathrooms, it would be reasonably practicable for the Wrights to remain in occupation of the premises while the work is undertaken. Installation of double glazing impacts very little on use of the premises. Because there are two separate bathrooms both with a shower, it means one bathroom could always be used while the other one is being renovated.

Whereas the re-roofing and renovation of the kitchen proposed in the second stage would not be reasonably practicable for the Wrights to stay in occupation.

The landlord has the evidential burden of establishing the termination notice meets the legal requirements. The landlord does not have a solid proposal which he has drawn up ready for submission to contractors to provide a quote. His outline of the proposed renovations at the hearing was relatively vague in its extent and timing. Mr Nazell says he will look for quotes later on in the summer in December 2023 and January 2024, with work commencing in April or May 2024.

Material steps towards the work must have been taken before 6 March 2024. A material step is defined as applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step. See section 51(2A) RTA.

Is seeking quotes from builders a significant step? Or does it need to be something more, such as the acceptance of a quote, and a contract concluded to start the work?

The meaning of an enactment must be ascertained from its text and in the light of its purpose. See section 5(1) of the Interpretation Act 1999 . In determining ‘purpose’ the courts must have regard to both the immediate and the general legislative context, and the social, commercial or other objective of the enactment.

In my view the purpose and context of section 51 in which a landlord is able to end a periodic tenancy by notice, is to limit the way in which this may be done. It follows the change in 2020 from the ability for a landlord to end a tenancy by notice with no reasons. Since then there are express and limited reasons for terminating a tenancy by notice so as to make a tenant’s tenure more certain. If a landlord can terminate a tenancy by notice on the pretext of a vague plan to gather building quotes with nothing concrete in place, then the purpose of the amendment would be defeated. A significant step then necessarily entails an important and essential step towards the work being undertaken. Gathering quotes is a precursor to the significant step of accepting a quote and finalising a building/roofing/kitchen renovation contract.

More than one step is required because the words are ‘material steps’, stated in the plural. In this case I find material steps would require acceptance of a building/roofing quote, if not the contract concluded, and any necessary permits/resource consents applied for and advanced part way through Council, before 6 March 2023. Without a building contract and relevant consents the work could not start. Even with these material steps taken, there will be further delay until the work starts until the necessary resource consents or building permits are granted, as well as other factors such as climatic conditions, availability of builders, and supply of materials.

In summary, the landlord has not persuaded me that the first stage of work requires the Wrights to move out of the premises or is indeed extensive refurbishment, and/or that material steps for the proposed renovation work will be taken before 6 March 2024. So I find the termination notice is invalid. This means the termination notice is of no effect and the tenancy continues. Has the landlord failed to repair and maintain the premises to a reasonable standard and comply with building health and safety laws?

A landlord has an obligation to repair and maintain the premises to a reasonable standard having regard to the age and character of the premises, and to comply with all building health and safety laws applicable. Sections 45(1)(b) and (c) RTA. The obligation is not negated because the property is in a rural location. Once notified by the tenant of a problem, the landlord must act promptly to attend to the repair.

Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.

If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. But this provision does not apply to any work order in relation to insulation, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) RTA.

A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.

The chimney leak: The tenants say in heavy rain, water came though the chimney flue surround in the ceiling and water dripped down. They collected the water in a bucket. The Wrights notified the landlord by text message and this was confirmed by the May 2023 breach notice they gave the landlord. It was repaired by Mr Nazell on 28 October 2023, some 5.5 months later. Although Mr Nazell’s friend Mr Steel came to the property in August 2023 he did not repair this leak.

I find the landlord in breach of his obligation to repair the premises. The length of time the problem was left caused discomfort and inconvenience for the tenants. Compensation is justified for the loss of amenity during this period, particularly as it occurred over the winter months of the year. I will consider what amount of compensation should be awarded for any breaches of these repair and maintenance obligations below.

The window latch and cracked window pane: The Wrights say the main bedroom window latch was stuck so they could not open the window. When they told the landlord of the problem, he provided them with another window latch and asked Mr Wright to replace it. When Mr Wright was screwing in the replacement latch, he stopped when he noticed fine small cracks appearing in the corner of the window pane. He advised Mr Nazell who also tried to refit a latch but unsuccessfully. Two large cracks then appeared across the whole pane.

Mr Nazell seeks reimbursement of the $189 for the costs of the glazier who repaired the latch and window because he says the tenants broke the latch. The landlord has not filed a cross application seeking compensation. However the tenants did not object to this matter being dealt with and raised it themselves.

I am not satisfied that the tenants broke the window latch. I think it more likely it was aged and worn and did not work as described by the Wrights. This is consistent with the aged nature of this 35 year old house, and its general condition. The landlord’s claim is not proved so is dismissed.

The tenants are entitled to some compensation for the inconvenience they incurred in not having an opening window in their bedroom for a period of months.

Insulation: The tenants say they believe there is no insulation in the house because it was damp and cold, and mouldy. They were unable to see if there was ceiling insulation because there is no manhole through which they can check.

Mr Nazell says he is unable to say if the house is compliant with the insulation standards. He believes there are pink batts in the ceiling which were probably installed when it was built in the late 1980s.

A landlord must provide a signed statement about the insulation in the premises in all tenancy agreements entered in to from 1 July 2016. A landlord must also include in the tenancy agreement a statement that the house complies with the Healthy Homes Standards. Breaching these obligations is an unlawful act for which exemplary damages up to a maximum of $750 may be awarded. See sections 13A(1A), 13A(1CA), 13A(1F) RTA, 109 and Schedule 1A RTA.

From 1 July 2019 all tenancies must have installed ceiling and under floor insulation except where it is not reasonably practicable to install. See Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and section 45(1)(c) RTA.

As the applicant, the tenants have the onus of proving their claim. However the landlord has failed to provide the requisite information about the condition of the premises and compliance with the insulation standards and healthy homes standards in the tenancy agreement. He has therefore committed an unlawful act. It is just that exemplary damages be awarded to the tenants for the landlord’s blatant failure to comply with these requirements and the consequential impacts: the landlords are unlikely to be compliant with the insulation standards and means the tenants have some difficulty in establishing the landlord’s lack of compliance.

Mr Nazell says he is “not really a landlord, just someone who has a second house.” The accommodation arrangement is a residential tenancy. The tenants pay rent to live in the premises. So Mr Nazell must comply with a landlord’s legal obligations, including this important obligation to ensure he knows the state of the insulation in the premises, and states it in the tenancy agreement, and then upgrades the insulation to the current standards.

Exemplary damages are akin to a fine. They are designed to deter non compliant behaviour. There is a strong public interest in deterring landlords from ignoring this important obligation. Mr Nazell’s attitude was dismissive of his obligations. I consider it just to award $700 exemplary damages.

I also make an order that the landlord obtains professional advice on what insulation is required to meet the current standards, and has it installed as ordered above.

Mould: The tenants say the house was dirty throughout with black mould at the beginning of the tenancy. They cleaned the house with some vinegar and bleach where they could reach. The bathrooms were particularly bad. In spite of this cleaning and keeping the house ventilated, they say the black mould returned. They provided photographs in support.

Mr Nazell says when the tenants complained of this problem while he was overseas, he had his friend David Steel come to inspect for mould and says he found none. Mr Steel did not provide a written statement of his August inspection or attend the hearing to be questioned.

Having regard to all the evidence provided, I am satisfied the house has recurring mould in it. I prefer the direct evidence of the Wrights to the second- hand evidence Mr Nazell gives from his friend. The photographs are also compelling evidence.

A landlord has an obligation to provide the premises in a reasonably clean condition at the beginning of the tenancy. Preventing mould developing in a house is a dual obligation of the tenant and landlord: the tenant must live in a way that avoids mould developing by heating and ventilating the house though opening windows, using extractor fans, and wiping away daily any condensation that arises from ordinary living; and a landlord must provide a house that is not prone to mould, fix any issue creating mould; and provide the means to heat and ventilate it.

I am satisfied the tenants have carried out their obligation to ventilate and wipe away any daily condensation. The landlord has failed in his obligation to provide a home free from damp and mould.

Shower hose: The tenant says for a long period the shower hose fixture was loose because it was not securely fixed to the wall. They notified the landlord in May 2023 and again gave him a further 14 day breach notice in July 2023. Mr Nazell says although he was not contactable for a time when he was in the hill country in northern Sweden, he eventually contacted his friend and the problem was fixed.

The shower was fixed on 26 July 2023 two months after the first breach notice. This delay in repairing the problem is a breach of the landlord’s obligation to repair and maintain the premises. Had there been an agent appointed as the landlord is required to do, the tenants would have been able to go direct to that person to attend to any problems, and had a much speedier resolution.

Outside kitchen drain: The tenants say they noticed the exterior drain outside the kitchen was blocked and smelt since the tenancy started. The Wrights attempted to unblock it, by removing the lid and examining inside the drain. They found it was blocked with fat so they removed about half a bucket of fat but were unable to remove it all. They say a month later the problem came back. It would drain to a point then stop. They tried pouring hot water down it, and bought a special liquid for drains, but they did not fix the problem. The drain continued to overflow and there was a terrible smell everyday.

They tenants notified the landlord of the ongoing problem while he was overseas. Mr Nazell gave them some advice, and the name of a plumber for them to contact. The tenants say it is the landlord’s responsibility to fix the problem.

Mr Nazell says when he bought the property in 2020 the drain was working perfectly. He says he believes the tenants have caused the blockage by washing a lot of fat down the kitchen sink.

It is the landlord’s obligation to attend to repairs. If it was established by the landlord’s plumbing contractor the likely cause was attributable to the tenants’ actions then he could bring a claim to the tribunal for compensation from them.

However I am not satisfied the tenants caused the blockage. They present as diligent and sensible tenants. I accept they did not wash fatty foods down the kitchen sink, rather they scraped their food off plates in to the compost bucket before washing them. The landlord has failed in his obligation to attend to repairs of the drain. I make an order requiring him to have the drains fixed by a professional plumber as ordered above.

The tenants have incurred loss of comfort in living in the tenancy premises from the landlord’s breach by having to endure the slow draining of the sinks, the overflow of the drain outside and the objectionable odour emanating from it on a daily basis.

Hotwater cylinder: The tenants seeks reimbursement of $126.00 they paid the landlord to have the hot water cylinder repaired. If the tenants caused the damage during the tenancy then they are liable for the repair costs.

During the first two days of the tenancy the tenants were without hot water because the hot water cylinder was not working. When they notified the landlord of the problem he told them to contact a professional to fix it but without internet at that stage the Wrights could not communicate with a contractor (because of their deafness). The landlord then had a plumber repair the hot water cylinder and demanded the tenants pay for it which they did. Now having received advice on their rights, the tenants seek reimbursement.

The plumber’s invoice sheds some light on the likely cause of the problem. He checked the switchboard and found a few RCD switches off which he turned on, tested the cylinder, and it worked. The heat pumps had also not been working before the RCD switches were turned on. The plumber states that there may have been a power surge.

The landlord says the tenants are at fault because they did not turn on a switch. However the tenants cannot be expected to know that the RCD switch was turned off. The RCD is a trip switch situated on the switchboard that turns off when there is a fault. The plumber did not identify the reason the RCD switches turned off and speculates it may have been a power surge. The tenants are not responsible for a power surge which is outside of their control. I am satisfied the tenants did nothing to cause the RCD switch to turn off. So I do not find the tenants responsible for the hot water cylinder not to be working. They are entitled to reimbursement of the invoice amount of $126.00 paid to the landlord.

What compensation should be awarded? Breaches of the landlord’s obligations warrant an award of compensation for the loss of amenity value to the tenants caused by the delay by the landlord in repairing the chimney leak, the shower hose, and the bedroom window not opening for a period; the odour and lack of drainage from the outside drain; no hot water for the first 2 days of the tenancy and living with mouldy dirty ceilings. The landlord also inappropriately placed an expectation on the tenants that they must carry out the repairs when it is a landlord obligation to do so.

The award of compensation is not an exact science as the High Court describes: "The basic rule governing the award of damages is that the plaintiff is to recover that sum which, so far as money can, will put him in the same position as he would have been in had he not sustained the wrong.... The point has often been made that no rule or formulation is to be applied mechanically, and that the essential thing is to determine what is appropriate and fair and reasonable as between the parties". See Sloper v WH Murray Ltd and The Maniatoto County Council (A35/84) Dunedin.

Taking all the facts in to account, I consider it fair and reasonable to award the tenants $3,000.00 for their loss of amenity value over varying periods of the

5 year long tenancy. Has the landlord interfered with the tenants right to reasonable privacy in the use of the premises?

The tenants say on 11 February 2023 the landlord came to the property for an inspection while they had visitors on a Saturday morning. They say the inspection was invasive because it took nearly an hour, took Mr Wright away from his visitors who left, and inappropriately told them to remove possessions out of the garage bay area so the landlord could use half of it for his storage.

A landlord must not interfere with the tenants right to reasonable peace, comfort or privacy in the use of the premises. Section 38(2) RTA.

It is accepted that the landlord gave prior notice of the proposed inspection but the tenants had forgotten it was occurring. The landlord cannot then be responsible for the inconvenience with the tenants’ visitors. As regards the length of the inspection visit, I am not persuaded the landlord has committed a breach. But the landlord should be aware that the longer an inspection continues the more likelihood there will be an interference with the tenant’s rights.

As regards the direction for the tenants to clear an area in the garage bay for the landlord to use, this is an interference with their rights. The tenants have exclusive use of the premises they rent. It is not open to the landlord then to require tenants to make an area available for him.

The landlord suggested the tenants needed to clear away some possessions and that they were hoarding. No independent evidence was provided to establish this, such as photographs. Further there is no cross application from the landlord to the effect that the tenants are not keeping the premises reasonably clean and tidy.

Mrs Wright also speculates that the landlord entered the house one day while they were at work because she saw her office door had been left open, a cat booklet was on the kitchen bench, and there were photos of the house in the pantry. The landlord denies he entered the house. There is insufficient evidence to prove this claim. It is not uncommon for a landlord to hold a key to the property but this does not equate to an unauthorised entry by the landlord.

I do not consider it appropriate to order any compensation for the 11 February inspection.

At the hearing it was agreed between the parties that the landlord will inspect the premises on Saturday 11 November at 11am. Both parties are reminded of their respective obligations.

Filing fee: As the tenants have been partially successful with their application the filing fee is reimbursed to them. See section 102(4) RTA.

Suppression: The tenants have been substantially successful with their claim but did not seek suppression of their name and identifying details. So a suppression order is not made. See section 95A RTA.

Order

Claims and awards in Tenancy Tribunal application 4673310 — net $3,846.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failure to repair and maintain	$3,000.00	failure to repair and maintain
Exemplary damages: no insulation statement	$700.00	no insulation statement
Reimburse plumbing costs	$126.00	Reimburse plumbing costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,846.44
Total payable by Landlord to Tenant	$3,846.44