What was Tenancy Tribunal case 4673869 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 4673869?

Compensation: $4,000.00 awarded to tenant; Property Damage: $4,500.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4673869?

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

Where can I read the official tribunal order for case 4673869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9512434-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4673869 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 4673869?

Compensation: $4,000.00 awarded to tenant; Property Damage: $4,500.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4673869?

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

Where can I read the official tribunal order for case 4673869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9512434-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4673869 — Healthy homes

Claims and awards in Tenancy Tribunal application 4673869 — net $9,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$4,000.00	Compensation
Exemplary damages – HHS and failure to maintain	$4,500.00	Exemplary damages – HHS and failure to maintain
Exemplary damages – Compliance statement	$700.00	Exemplary damages – Compliance statement
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,220.44
Total payable by Landlord to Tenant	$9,220.44

Claims and awards in Tenancy Tribunal application 4673869 — net $9,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$4,000.00	Compensation
Exemplary damages – HHS and failure to maintain	$4,500.00	Exemplary damages – HHS and failure to maintain
Exemplary damages – Compliance statement	$700.00	Exemplary damages – Compliance statement
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,220.44
Total payable by Landlord to Tenant	$9,220.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ name and identifying details.
The landlord’s application is referred to mediation. A further hearing can be scheduled if the matter is not resolved.
The tenants’ claim for exemplary damages for the late lodging of the bond at the Bond Centre is dismissed.
The tenants’ claim for a work order for ceiling insulation is dismissed.
The tenants’ rent is reduced by $50 per week from the 4 October 2023 until the date all work orders were/are complied with as compensation for lack of amenity and inconvenience.
The landlord must carry out the following work to the premises, which must be completed by 10 November 2023: a. Make the roof weathertight so that it does not leak
As an alternative to compliance with Order 6, the landlord must pay the tenant $2,000 immediately.
If the landlord fails to comply with either Order 6 or 7 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $2,000. These costs may be set off against rent payable.
BY CONSENT - The landlord must clean all pathways by 30 November 2023.
BY CONSENT - The landlord must repair or replace the Gib behind the laundry tub in the garage by 20 October 2023.
BY CONSENT - The landlord must repair the garage door so that the motor opens the door using the remote by 31 October 2023.
BY CONSENT - The landlord must repair or replace and re-paint all rotten or damaged and flaking weatherboards, window sills and window frames by 30 November 2023.
BY CONSENT - The landlord must clean, repair or replace as needed the drainage and guttering so as to comply with the Healthy Homes Standards by 30 November 2023.
BY CONSENT - The landlord must comply with the Healthy Homes Standards for draught stopping by 30 November 2023.
The Rent Shop Limited As Agent For Julia Rozgon As Trustee For The McCourt And Rozgon Family Trust must pay [The tenant/s] $9,220.44 immediately, calculated as shown in table below:

Reasons

This tenancy began on 1 October 2021. The landlord is Julia Rozgon as trustee of the McCourt and Rozgon Family Trust. The landlord’s agent is presently The Rent Shop. The application was amended to reflect this.
At the start of the tenancy a different property management business managed the tenancy for the landlord. The Rent Shop has managed the tenancy from 17 January 2022. The property manager who was the tenants’ primary contact at the Rent Shop has since left (Mr Keene). The landlord was represented by Mr Weir of The Rent Shop at the hearing.
The tenants both attended the hearing with a support person.
As explained at the hearing a party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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 the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. THE LAW – FAILURE TO MAINTAIN AND HEALTHY HOMES STANDARDS
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA).
Under s 45(1)(b) RTA, a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
It is of course it is trite that a landlord must be notified of defects before it can be liable. However, I concur with the opinions of the Tribunal in Marks v Godfrey 15/01390, HN 25/08/2015 and [Suppressed] [2021] NZTT 4293251 to the effect that all properties should be checked regularly and maintained as required.
The tenants also claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The tenants claim that the landlord has failed to comply with the draughts, drainage and insulation HHS standards.
Compliance dates for the HHS vary depending on the tenancy private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
The 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 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 HHS insulation requirements for ceiling insulation are standards of R-2.9 (zone 1 or 2) and R-3.3 (zone 3). Insulation must be installed in accordance with NZS 4246:2016 and be in reasonable condition (or better). The HHS requires ceiling insulation installed prior to 2016 to be a least 120mm thick unless the landlord can show the insulation’s R-value met the minimum R- values (2.9 or 3.3 depending on the climate zone) when it was installed, and the insulation’s thickness has not degraded by more than 30% (compared to when it was installed).
The HHS does provide exemptions in specific circumstances.
Breaching the HHS obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A, RTA).
Where the Tribunal finds that the landlord has failed to comply with any of the landlord’s obligations under section 45(1)(a) - (ca), 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. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, 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. TENANTS’ CLAIMS FOR FAILURE TO MAINTAIN
I have considered each of the tenants’ claims for failure to maintain under s 45(1)(b) RTA individually below. Pathways – Work order
The tenants say there has been a failure to maintain and sought a work order to clean the pathways.
The landlord agreed to clean all pathways by 30 November 2023. The tenants agreed. Therefore, I have ordered that the landlord undertaken this work by consent. Laundry wall – Work order
The tenants say there has been a failure to maintain for missing Gib and seek a work order.
The laundry is located in the garage which is joined to the sunroom of the house. Part of this wall against the house in the garage is missing Gib next to the laundry tub. The tenants say that the wall was only half lined with Gib at the start of the tenancy - the upper part of the wall was lined but a lower section was not. The tenants rely upon the property inspection of the landlord of 17 of January 2022 in which there is a photograph of the wall lining in the same state of repair. The tenants say they had verbal communications with Mr Keene about this.
The tenants do not seek compensation or exemplary damages in respect of this as they say it is more of a minor issue – However, they do seek a work order.
I have made a work order by consent because the landlord offered to repair or replace the Gib behind the laundry tub by 20 October 2023. The tenants agreed to this. Garage door – Work order, compensation, exemplary damages
The tenants seek a work order, compensation and exemplary damages for failure to maintain in relation to a motorised garage door.
The tenants say that the motor to open their garage door has not worked from the outset of the tenancy. The tenants say that the original property manager knew about this. They say that they were told by the original property manager that someone would come - but no one ever came.
The tenants say that Mr Keene knew about this from when the Rent Shop took over. They say they have raised it in every inspection. An inspection was done on 17 January 2022 with the owner. This was provided to the Tribunal. It records maintenance is needed to the door.
The tenants say that the owner took the remote for the garage and say that they raised this as an issue at each tenancy inspection but nothing has been done. The tenants say that the power to the motor has been cut and provided a photograph of this in evidence.
The tenants say that they can access the garage via a side door. The tenants say that for [Tenant 1] to access the garage via the main door she has to get one of her sons to help her. She says her height means it is a two-person job and they have to pull the door open using pieces of string.
The tenants also say that they also have to secure the door using a piece of wood because it is the motor that locks the door. The tenants provided photographs of the motor, the door (with wood) and the cut power cord.
As well as the property inspection report dated 17 January 2022, the landlord’s most recent property inspection records that the door is not working and timber is keeping it shut.
Mr Weir says he was not aware of the problem until the application and that he has since got a few quotes.
I am able to make a work order by consent because the landlord offered to repair the garage door so that the motor opens the door using the remote by 31 October 2023 and the tenants agreed.
The tenants also seek compensation and exemplary damages so I must consider the position further.
I am satisfied that there had been a failure to maintain. The garage door motor is clearly not operational and I accept the evidence that the tenants have to secure it with wood from the inside. Given that the power cord, supplying power to the motor, has been completely cut I accept that the garage door would not have been working from the outset of the tenancy. Further, there is probative evidence that the issue was existing as at the date the Rent Shop took over. This is because the Rent Shop’s first property inspection report records that the garage door opener is not working and may need to be replaced and that maintenance is needed.
It is not reasonable for a tenants to wait over two years to have an operational garage door.
I have considered the amount of compensation and an award of exemplary damages below. Weatherboards - Work order, compensation, exemplary damages
The tenants say there has been a failure to maintain window surrounds and weatherboards. They seek a work order, compensation and exemplary damages.
The tenants provided a number of photographs showing certain sections of the exterior of the property. The photographs show the kitchen window, weatherboards under that window, the window and weatherboards for the bedroom on the kitchen side, weather boards on the corner of the house, the lounge window and the front bedroom. The photographs show areas of rot or exposed wood and/or rot and/or flaking paint.
The tenants state that they drew this to Mr Keene’s attention during inspections. The property inspection report dated 17 January 2022 supports this as it sets out a recommendation for a repaint of the outside of the property because paint is flaking on weather boards and windowsill area. It also records that some rotting boards may need to be replaced.
I am satisfied that from at least 17 January 2022 the landlord has been aware of the condition of the exterior state of the property and there has been a failure to maintain.
I have made a work order by consent because the landlord offered to repair or replace and re-paint all rotten or damaged and flaking weatherboards, window sills and window frames by 30 November 2023 and the tenants agreed.
Once this was identified by the landlord in January 2022 this should have been attended to within a reasonable timeframe. Having to wait approximately 20 months for this work to have been done is not reasonable. I am satisfied that there has been a failure to maintain.
I have considered the amount of compensation and any award of exemplary damages below. Roof – Work order, compensation, exemplary damages
The tenants seek a work order, compensation and exemplary damages for failure to maintain the roof which they say leaks.
The tenants say that the roof leaks on the dining room side of the house. The tenants say the leak goes from the dining room all down that side of the house to their son’s room. A few weeks prior to the hearing the landlord did send someone who looked at the roof and the landlord says that a temporary fix was undertaken.
The tenants had very limited probative evidence of the condition of the exterior of the roof. They had only a photograph showing rusted iron under the eaves of the house through a small hole. That photograph did not show the extent of the overall problem described by the tenants which was that the roof on the whole side of the house was rusty. The tenants also presented photographs of a crack in the dining room ceiling, ceiling tiles in the main bedroom and a photograph of tiles in their son’s bedroom ceiling.
The tenants say that the roof could not be insulated until the roof leak was fixed and also that an electrician said it was not worth repairing their flickering dining room light (considered below) until the roof repair was undertaken.
The tenants say they no longer have a video showing the leak but that it was shown by them to the Healthy Homes assessor who produced a report dated 23 February 2022. In this decision I will call this report the ‘Betta HHS report’. The Betta HHS report corroborates this oral evidence because the comments made in the insulation section record that the tenant has shown them a video of a significant leak and the assessor reflects upon whether the insulation might be damp and damaged.
The tenants say that the temporary fix has improved the problem. The roof still leaks but just not as badly.
The tenants have probative evidence of reporting the issue to Mr Keene on 5 February 2022. This was sent in an email. In the email the tenants say there is a major leak in one of the children’s rooms and there are 3 buckets in place to catch the water coming through the roof.
On behalf of the landlord Mr Weir accepts that the ‘ball has been dropped’ by Mr Keene. However, he says that the difficulty is that there is no staining inside or marks showing where the water is leaking. He has not seen the leaks and he does not know exactly where the leaks are – it is not known how severe the leak is.
He says that the crack in the dining room ceiling is most likely movement as the crack is along the Gib line and on the photograph of the tiles in the main bedroom he says sagging cannot be seen. There are no water marks or mould or any drops in the ceiling.
The landlord provided evidence of the temporary repair in the form of an invoice. The landlord says it is the intention to get the roof replaced and quotes have been obtained. There is no timeframe for this at present. The landlord does not know how long the temporary patch will last for. The invoice records the roof being repaired temporarily with tape and silicone over the holes.
The landlord says that the insulation has now been replaced. During a short adjournment the landlord contacted the electrician who said he would return to reassess fixing the light in the dining room now the patch has been done.
The photographs provided by the tenants as to the extent of the leak are limited. The sag in the tiles in the main bedroom is minimal and the photograph of the tiles in the son’s room also is not clear – However, there does appear to be some discolouration or different shading. The crack in the dining room runs across a Gib line and there are no water marks. The tenants say there is no mould because they clean it. I have no sufficient photograph of the exterior of the roof to assess the extent of the problem on the exterior of the property.
Despite this, I have no doubt that there has been a roof leak and the landlord has known about it since February 2022. Not only was it reported by the tenant by email but it is also set out in the Betta HHS report. Further, until the temporary repair was undertaken I am satisfied that two tradespeople (electrician and insulation installers) were not able to undertake work. The landlord also needed to temporarily repair the roof and is in the process of arranging for the replacement of the roof.
I accept that a temporary repair was recently undertaken. However, I accept that it is more likely than not that the temporary repair has not entirely resolved the leak.
I have no reason to doubt the tenants’ evidence about the continuance of a leak. There was very limited information before the Tribunal about the fix that had been undertaken by the landlord. [Tenant 1] spoke mainly to the Tribunal on behalf of herself and [Tenant 2]. She gave information to the Tribunal in a straightforward manner. She readily admitted when she could not remember facts. I find her evidence to be credible. A continuing leak is also supported by the fact that the landlord accepts that the roof does need replacing in due course and the fact a significant leak was reported in the Betta HHS report.
A tenant should not have to wait around 20 months to have a roof leak repaired. This is not reasonable and I accept there has been a failure to maintain.
I therefore order that the landlord make the roof watertight by Friday 10 November 2023.
I have considered the amount of compensation and award of exemplary damages below. Light – Compensation and exemplary damages
The tenants say that there has been a failure to maintain in relation to the light in the dining room which flickers ‘like a horror movie’. The tenants seek compensation and exemplary damages.
They say that they cannot use the light. They say that the reason why the light is flickering is due to the roof leak. They say [Tenant 1] put tape on the switch to stop the children turning it on.
The tenants say that Mr Keene was first told about this in a phone call. The tenants say that they are not sure when this was, but this was followed up by an email on 6 July 2022 which was provided to the Tribunal. This email refers to not having had any contact from an electrician (and also refers to the garage door). The tenants say that Mr Keene was first told about this about the same time as the roof leak. The tenants say that [Tenant 1] also mentioned this at the recent property inspection on 17 August 2023.
The tenants say that an electrician came on 20 August 2023. The tenants say that the electrician said that there is no point to fixing the electrics in the dining room because if they got wet again from the roof leak the issue would come back - so the roof really needed to be fixed first.
Mr Weir says the first he knew about this was at the inspection on 17 August 2023. He points to a photograph provided by the tenant of the light switched being taped up by the tenants which has written on it a date of 14 July 2023. The landlord says it is not known if the tenants were referring to their garage door or lights in the email of 6 July 2022.
I am satisfied that the tenants likely reported the issue in relation to the dining room light at the same time, or soon after, that they were communicating with the landlord about the leak in the dining room. The fact the electrician would not fix the light until the leak was resolved shows the light and the leak in the roof are connected. The tenants’ evidence that [Tenant 1] spoke to Mr Keene about the issue is supported by the e-mail dated 6 July 2022. In that email the tenants separately refer to the garage door to needing an electrician.
I find that has been a failure to maintain which is ongoing. A tenant should not be without a light in a room for months let alone over a year. It is no excuse to say the light cannot be fixed due to a roof leak. This only makes the roof leak a more pressing issue to fix.
I have considered the amount of compensation and any award of exemplary damages below.
The tenants do not seek a work order for the light due to the fact [Tenant 1] understood that the roof needed fixing first. However, the landlord spoke to the electrician during an adjournment and the electrician will return to assess the position. TENANTS’ CLAIMS FOR BREACH OF HEALTHY HOMES STANDARDS
I have considered each of the tenants’ claims for breach of the HHS individually below. Insulation – Work order and exemplary damages
The tenants seek a work order and exemplary damages for failure to comply with HHS insulation standards.
As set out above, the HHS compliance date for this tenancy would have been 90 days after 1 October 2021 (being the start date of the tenancy). However, the landlord’s own HHS compliance statement sets out that the compliance date was 1 July 2021. The tenants were entitled to rely on this.
I find that there has been a breach of the HHS insulation standards because the Betta HHS report records that the insulation at the property is non-compliant. It records that the insulation is not sufficiently thick and recorded concerns about it being damp and damaged due to the roof leak. The R value is estimated to be R1.2-2.1. It records that the insulation measures 60mm and 110mm thick. A WISE report undertaken for the landlord dated 21 August 2022 records that the insulation does not comply with HHS and that work could not be completed due to the roof leak.
The landlord says the work has been done recently and insulation topped up sometime in August or September 2023. The landlord says it must have been done by 19 September 2023 because WISE recorded that the ceiling insulation complies in a report that was done on 19 September 2023. This was provided to the Tribunal.
The landlord has clearly disregarded her obligations with regard to insulation requirements. The landlord did not comply with HHS by the date required by the HHS or the date set out in her own statement of compliance. There is no evidence of compliance until 19 September 2023. I accept that the work was done by that date because of the WISE report.
Because I am satisfied that the insulation in the ceiling is now compliant I dismiss the application for a work order. However, I must still consider exemplary damages. I have considered this below. Drainage standards – Work order and exemplary damages
The tenants seek a work order and exemplary damages for failure to comply with HHS drainage standards.
The tenants say that HHS are not met in relation to drainage and guttering. [Tenant 1] says that the first property manager knew about this, but it was like talking to herself.
Subsequently the tenants say that Mr Keene knew about this, they say he could not do much because of the owner but he was doing his best. The tenants say that part of the guttering on the southwest side is so rotten the bottom of it has fallen out and it is hanging. There are no gutters on a porch and downpipes are missing. There are gaps in the guttering as it does not run to the end of the building.
The tenants also say that the downpipes drain directly onto a concrete pad causing it to be slippery with slime. The tenants also say that a pipe discharges on to the driveway causing slime and moss to build up. The tenants say that nothing has been done on the drainage or guttering since the date of the Betta HHS report dated February 2022 which reported non- compliance.
The landlord was not certain on the position. Mr Weir says he could not talk to the position taken by the previous property manager. He noted that the tenants regarded that Mr Keene had been trying his best.
Mr Weir says something was done on 10 August 2022, but he did not know what that was. He thought that some remediation work had been done on the SW side. Where the drain was discharging onto the concrete pad the landlord thought that there might be a drain that the pipe could do into. The landlord says that the SW gutter was the main concern.
The tenant’s position is supported by the Betta HHS report which sets out the property is non-compliant with the HHS in a number of respects and that it is recommended that advice is sought from a suitability qualified plumber/drainlayer.
I consider that there has been a breach of the HHS drainage standards. The landlord has not satisfied me that sufficient or any steps have been taken since the Betta HHS report was produced. I have considered exemplary damages below.
I have made a work order by consent because the landlord offered to clean, repair or replace as needed the drainage and guttering so as to comply with the HHS by 30 November 2023 and the tenants agreed. Draughts – Work order
The tenants seek a work order for failure to comply with HHS draught stopping standards.
The tenants say that there are draughts. The tenants rely on the Betta HHS report which identifies two areas of concern – the door in the sunroom and the dining room window the landlord says this was fixed and provided evidence of this. The invoice is dated 29 September 2022.
The tenants say there still a gap between the doors in the sunroom but there was no probative evidence of this.
The tenants say that the other windows are also draughty due to the rot (as set out above). The evidence in relation to this was limited to that set out above in connection with the claim for failure to maintain.
The landlord says it was not aware of an issue and as far as it was concerned the issue had been remedied when the points raised in the HHS had been addressed.
The landlord however agreed to fix any drafts caused by the windows in breach of the HHS by 30 November 2023. The tenants agreed. Therefore, I have ordered this by consent. EXEMPLARY DAMAGES – FAILURE TO MAINTAIN AND HEALTHY HOMES

STANDARDS

Healthy Homes Standards – Insulation and drainage

As set out above, s 45(1)(bb) RTA requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.
I have found that the premises failed to comply with the HHS as it relates to insulation and drainage. Over the course of the tenancy the tenancy has not complied with the HHS. This is a breach of s 45(1)(bb) and an unlawful act under s 45(1A) of the RTA.
The tenants seek exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act; b. The effect of the unlawful act; c. The interests of the landlord or tenant against whom the unlawful act was committed; d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of s 45(1A) RTA is $7,200.00.
Having considered the section 109 factors, I have determined that exemplary damages should be ordered for breach of the HHS for the following reasons: a. I consider the breach was intentional. The landlord clearly knew, or should have known, that the insulation and drainage standard had not been met this was obvious from both the Betta HHS report and the subsequent WISE report. The breach is serious because reports alerted the landlord to non- compliance but I am not satisfied that anything was done to remedy the issue until very recently. b. The effect for the tenants is that they have lived in a cold and damp home for a long period of time. c. There are strong interests for the tenants in having premises compliant with the HHS. d. There is a strong public interest that tenancies are warm and dry and comply with necessary obligations in relation to the building. e. It would be just to make an order.
Because I am making a second order of exemplary damages for a breach of s 45(1A) in relation to a failure to maintain, I will consider the amount of the exemplary damages order below. Failure to maintain – Roof, garage, window surrounds/weatherboards, light
I have found that the landlord has failed to comply with section 45(1)(b), which is a breach of section 45(1A) for exemplary damages purposes.
Taking into account the section 109 factors set out above: a. On the basis of the evidence presented, I consider the landlord’s decisions around maintenance would have been intentional. b. The breach for the tenants has been significant in that they did not have a warm and dry home to live in and the garage door would have caused them inconvenience and it was not properly secure. c. There is a strong interest for tenants and the public generally that landlords maintain premises as needed. d. It would be just to make an order. The amount
The question then becomes the amount of exemplary damages to order.
There are two breaches of obligations under section 45 (the HHS and maintenance), but that is still a breach of one section, that is s 45 RTA. I can only make an order to the maximum of $7,200.00 for a breach under section 45(1A), but I can take into account that there are two breaches within that section.
Having done so, I consider an order at 50% of the maximum would usually be reasonable. However, I also am aware of another order of the Tribunal in [2023] NZTT 4417582, 4489360 in which a tenant was awarded compensation as a result of the same landlord failing to maintain a different property in February 2023. This decision also related to a failure to maintain the exterior of a premises.
Given that the landlord has already been before the Tribunal for breaching her obligations to maintain premises I consider that this justifies an uplift. I therefore order exemplary damages of $4,500.00 COMPENSATION – GARAGE DOOR, ROOF LEAK, EXTERIOR WINDOWS SURROUND/WEATHERBOARD AND LIGHT
The tenants also seek compensation by way of a rent reduction for the landlord’s failure to maintain.
I consider it is fair to order compensation. The tenants were expected to pay rent for premises which did not meet the required standard. I note that exemplary damages are not compensatory, so it is reasonable to also order a sum of money to compensate the tenants for their loss.
The tenants have contended with significant of failures to maintain the property for a significant amount of time. It is reasonable to order compensation for these items of maintenance which were not undertaken. What the compensation relates to, is loss of amenity in the premises from the work not being completed. To put that another way, a refund of a portion of the rent paid, for the tenants not getting what they were paying that rent for.
The property is a weatherboard bungalow with a kitchen, dining room, lounge, bathroom, four bedrooms, sunroom, bathroom and garage. The tenants initially paid $570 per week from 1 October 2021 to 21 October 2022. The rent then increased to $600 per week. The rent is due to increase again on 27 October 2023 to $620.
These sorts of claims are next to impossible to determine with precision what the loss of amenity would be. The best I can do is to step back and consider, based on the issues and period over which the issues remained, what would be a fair level of compensation to return the tenants to the position they would have been if the work had been done efficiently.
I note that the garage has continued to be used, albeit with difficulty, the bedrooms and dining room have been used, albeit that the dining room has limited use due to the lack of a light. Nevertheless, a roof leak is an issue that should be treated as a matter of urgency. Significantly, the position in relation to the roof meant that insulation was not upgraded. The tenant was paying rent to live in an insulated and dry property but did not receive it.
I consider it reasonable to provide compensation to the sum of being $4,000. That is ordered.
I have made this specific award to the date of the hearing being 3 October 2023 (at which time the work was not completed).
The tenants also requested an order that the rent does not increase until the work that has been ordered is complete. I decline to do this. However, instead I find it reasonable to reduce the tenant’s rent by $50 per week from the 4 October 2023 until the date all work orders were/are complied with as ongoing compensation for lack of amenity and inconvenience. INCORRECT HEALTHY HOMES COMPLIANCE STATEMENT – EXEMPLARY

DAMAGES

The tenants say that the Healthy Homes compliance statement provided at the outset of the tenancy is incorrect in a number of respects. They say this is in breach of s 13A (1A) and (1CA) RTA and seek exemplary damages.
Under s 13A(1A) RTA a landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed.
If, despite making all reasonable efforts to do so, the landlord has not been able to obtain some or all of the information required, s 13(1C) sets out what the landlord may do as an alternative to providing the information in s 13(1A).
Further, under s 13A(1CA) RTA, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to comply with s 13(1A) or s 13(1CA) by not including the required information or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide or up to $900.00 for knowingly providing false or misleading information.
The tenants say the ceiling insulation was stated to meet the HHS when it did not. It stated that the R value was 120mm when the insulation was not 120mm. The Betta HHS report stated it was 110mm and 60mm. The WISE report dated 21 August 2022 also noted that the insulation was non-compliant.
The Healthy Homes compliance statement provides that there is underfloor insulation and it is R2. However, there was, and still is in fact none, as shown by the Betta HHS report.
For reasons set out above (see paragraph 82 onwards) The tenants say the property did not comply with the drainage standard although the Healthy Homes compliance statement states it does. Non-compliance is shown in the Betta HHS report.
Finally, the Healthy Homes compliance statement stated that the property complied with the draught stopping standard but the tenants say that the draught stopping standard was not met, as shown in the Betta HHS report.
The HHS ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The Healthy Homes compliance statement states there is kitchen ventilation that would be complete by 1 July 2021 (a date that is prior to the start of the tenancy) but there is none and there is still none.
The landlord says it cannot speak to the compliance statement that the earlier property manager signed. The present property manager says he did not know what he was supposed to do if something was wrong. The landlord sought to rely on an exemption for underfloor insulation and for the kitchen ventilation. The landlord said that the draught issues in the Betta HHS report were resolved. However, the invoice provided to show this work being undertaken is dated September 2022.
For the reasons given by the tenants set out above I am satisfied that it is more likely than not that the Healthy Homes compliance statement was misleading and falsely reflected the position at the time it was signed in relation to the insulation, ventilation, drainage and draught stopping standard. No good reason for this failure was provided. If and where exemptions apply they should be stated. Although the landlord’s agent has changed, the landlord, Julia Rozgon, has not changed.
For the sake of completeness, I note that the tenants also referred to a hole in the ceiling in relation to this part of their application. They stated this had got bigger. They had no probative evidence showing the position of this hole at the start of the tenancy therefore I have not taken this into account when reaching this conclusion.
The breach occurred when the statement was signed on 23 September 2021. However, I consider that this breach is continuing because the tenants have never had a correct HHS compliance statement.
I have set out the test for exemplary damages above and do not repeat it here.
It would appear that no effort has gone into the completion of the Healthy Homes compliance statement for this tenancy. Obvious incorrect statements were made, such as the existence of underfloor insulation and kitchen ventilation – because these did not exist at all (and still do not exist). Providing correct and accurate information is expected. There was no good reason presented for providing the incorrect information. In the absence of a good reason, and in the light of the information stated, I consider that the failure to provide the material was intentional and the material was false and misleading.
The result is that the tenants relied on it and they have spent a significant time being concerned that the property did not meet the HHS. There is a public interest in compliance with these requirements. It ensures that both parties turn their minds to compliance with the law, and that rental properties are compliant with the relevant provisions.
Accordingly, I consider that an award of exemplary damages is appropriate, and I award $700.00. This award is slightly higher than would ordinarily be made for a first breach, that is to reflect the fact that the Healthy Homes compliance statement was clearly deficient in more than one respect. FAILURE TO LODGE THE BOND WITHIN 23 WORKING DAYS – EXEMPLARY

DAMAGES

The tenants seek exemplary damages for the landlord’s failure to lodge the bond within 23 working days.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) RTA). This applies whether the bond is paid in part or whole. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s 19(2) and Schedule 1A RTA).
The tenants say they paid the previous property manager the bond at the start of the tenancy but had no proof of this. They say that they could not move in without providing the bond. The tenants say they got a letter from the Rent Shop advising them part of their bond was missing on 19 January 2022. The tenants say they were surprised to get this letter as they had paid the bond.
The landlord only had information relating to the bond payments made to the Rent Shop. They say that they got part of the bond sent to them on 19 January 2022 ($1,155) and part of it sent to them on 8 February 2022 ($1,125). Mr Weir did not know who had sent these sums to the Rent Shop: It could have been the tenants or the previous property manager. It was not a bond transfer.
At the hearing the parties agreed that the bond was lodged on 28 February 2022. This is also the position recorded at the Bond Centre.
I am satisfied that the bond was not paid into the Bond Centre within the 23 working days as required.
It is not disputed that part of the bond was paid to the Rent Shop by 19 January 2022. It does not matter whether or not the tenant did pay a bond to the first property manager because the Rent Shop should still have lodged this sum on behalf of the landlord within the statutory timeframe. The obligation to lodge a bond within the statutory timeframe exists even where the whole bond has not yet been paid. The tenants have established a breach of s 19(1) RTA.
However, I am unable to award exemplary damages for this breach because the breach was remedied on 28 February 2022 when the bond was paid to the Bond Centre. This application was made on 26 September 2023.
Section 109(2)(b), RTA provides that a tenant cannot apply for exemplary damages 12 months after the date of commission of this unlawful act.
The unlawful act was committed more than 12 months ago. There is no continuing unlawful act here (for example, this may be the case where a bond is never lodged). This means exemplary damages cannot be awarded. Put another way, the tenants are too late in making this application for exemplary damages.
The tenants’ application for exemplary damages in relation to this part of the application is therefore dismissed.

FILING FEE AND SUPPRESSION

The tenants have been substantially successful and so I award the filing fee.
The tenants requested name suppression. 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 (s 95A(1), RTA).
The tenants have been substantially successful and so I have awarded name suppression.
The landlord did not request name suppression and so I have not considered this.

NEXT STEPS

In the days before this application was due to be heard the landlord filed an application to terminate the tenancy due to rent arrears.
The file indicates that the tenants were served with this application on 29 September 2023 by email (although at the time of the hearing the tenants said they had not received the application). Due to the late filing of the landlord’s application and the nature of the tenant’s application, the landlord’s application is yet to be heard.
The tenants expressed that they would want any sum ordered in this application to be applied to the sum sought in the landlord’s application for termination and rent arrears by way of a set off (where one amount owed by one party is taken off an amount owed to the other party).
It may be that the landlord no longer wants to pursue her application for termination and rent arrears now the sum owed by the landlord to the tenant appears to be greater than the sum owed by the tenant to the landlord (as at the date of the hearing the landlord said the arrears were 17 days although I make no finding in relation to this).
The parties may agree between themselves to set off the amount the tenant owes the landlord from the amount now owed to the tenant from the landlord. The landlord can then pay the balance to the tenant.
I have referred the landlord’s application to mediation so that the parties can be facilitated, if necessary, with reaching this agreement.
If the parties cannot agree or if mediation does not resolve the landlord’s application another hearing will be scheduled by Tenancy Services.

Tenancy Tribunal case 4673869 — Healthy homes

At a glance

Tenancy Tribunal case 4673869 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

STANDARDS

DAMAGES

DAMAGES

FILING FEE AND SUPPRESSION

NEXT STEPS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

STANDARDS

DAMAGES

DAMAGES

FILING FEE AND SUPPRESSION

NEXT STEPS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions