What was Tenancy Tribunal case 4681733 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4681733?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4681733?

The primary dispute was Leaks. Related themes: State of repair, Cleanliness, Healthy homes, Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4681733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9926757-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4681733 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4681733?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4681733?

The primary dispute was Leaks. Related themes: State of repair, Cleanliness, Healthy homes, Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4681733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9926757-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4681733 — Leaks

Order

The application is dismissed.

Reasons

Both parties attended the hearing, each with support. The landlord company was represented by a property manager. Background
The tenancy started on 20 January 2023. It was a fixed term tenancy, but the landlord agreed to release the tenant early at her request. The tenancy ended on 16 June 2023. The bond had been paid to the tenant in full.
The tenant was concerned that the premises were not properly clean at the start of the tenancy and that the landlord did not provide sufficient information in the tenancy agreement to comply with its responsibilities under the Residential Tenancies Act 1986 (RTA).
The tenant was also concerned that the premises were not maintained, were not compliant with the Healthy Homes Standards (HHS) and posed a health risk due to asbestos.
The tenant has applied for exemplary damages for alleged breaches of the landlord’s statutory responsibilities. Issues
The issues the Tribunal must determine are these: •Did the landlord fail to comply with the requirements of section 13 RTA by failing to provide required information to the tenant? •Did the landlord fail to provide the premises in a reasonably clean condition and a reasonable state of repair? •Did the landlord commit any unlawful acts by failing to ensure compliance with the HHS and in relation to the issue of asbestos? Legal principles – 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.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest. Did the landlord fail to comply with the requirements of section 13 RTA by failing to provide required information to the tenant?
Section 13 RTA requires a landlord to provide certain information and confirm compliance with the HHS in the tenancy agreement.
The tenant said that the landlord’s address for service named the company but just said ‘[City]’ as the address.
The landlord’s representative said she thought she had to give her personal address and was reluctant to for personal reasons, but she now knew that the company’s address should be provided.
The landlord’s communications to the tenant clearly stated the company’s address and email details.
The tenant also claimed that the insurance disclosure was inadequate. The landlord was only required to confirm that the premises were insured, which it did. The tenant’s later request for details of the landlord’s insurance policy was not met.
The landlord’s representative said that the owner of the premises had not provided her with updated insurance details.
The tenant was entitled to that information on request. The landlord’s representative should ensure that she obtains that information from the owner of the premises for future tenancies.
These breaches were technical breaches. The Tribunal is assured by the landlord’s representative that they have been or will be remedied.
These actions were negligent at best. They were not intentional. Without the necessary element of intent, the Tribunal makes no award of exemplary damages. Did the landlord fail to provide the premises in a reasonably clean condition and a reasonable state of repair?
From the photos the tenant provided in evidence, I accept that the premises were not provided in a reasonably clean condition and that some repairs were required.
The tenant gave evidence that the leak under the sink was repaired. She said that she received $200.00 compensation for cleaning she undertook at the start of the tenancy.
The compensation the tenant received equates to around 8 hours work (the Tribunal generally compensates landlord and tenants at a rate of $25.00 per hour for work done).
Had the landlord not compensated the tenant, the Tribunal would have made an order for compensation.
However, no order for exemplary damages is made. The required repairs were generally of a minor nature. Also, the tenant’s correspondence to the landlord’s representative confirms that she was happy for the minor repair work to be done after she had vacated the tenancy.
Also relevant is that the tenant was released from her fixed term tenancy early. Had she applied to the Tribunal for an order reducing the term of the tenancy for repair and/or cleanliness issues, it is unlikely that an order would have been made.
The tenant has not proved that the landlord acted with intent, that is, turned their mind to the unlawful act and then deliberately set about to commit it. I make no award of exemplary damages. Did the landlord commit any unlawful acts by failing to ensure compliance with the HHS and in relation to the issue of asbestos?
The landlord had the premises assessed for HHS compliance and an assessor completed a report on 10 November 2020.
The report is confusing since it states that the premises were not HHS compliant, but then confirms each category of the HHS as being passed.
The landlord’s representative explained that the initial report identified some issued that were fixed, and the report was updated, but the mention of the premises being non-compliant was a clerical error.
The tenant produced photos that appear to show gaps around windows and a door. As with other repairs, she was prepared to wait until she vacated for repair work to be done. She said if the landlord agreed to end her fixed term tenancy that would allow the landlord time to arrange for the outlined issues to be addressed in full and appropriately (once I have exited the property).
The landlord’s representative confirmed that the gaps referred to by the tenant have since been repaired.
The tenant said that it was possible to insulate between the carport roof and the floor of the room above, but the HHS assessor has confirmed that the insulation standard at the premises has been met.
This is not a case where the landlord took no action to ensure HHS compliance. Though not required by the RTA, but good practice, the landlord had the premises assessed by a HHS assessor.
I accept the landlord’s representative’s evidence about the confusion in the report. The statement of non-compliance was after the initial assessment. The premises were then reassessed as HHS compliant.
Even HHS compliant premises can require further work over time, which seems the case here. Given the tenant’s communications and her request to be released from the tenancy it was reasonable for the landlord to wait to have the gaps she identifies as causing draughts to be repaired, which they have been. The tenant herself said the work could be done once she had vacated.
Again, I do not conclude that the landlord acted with intent. It took prudent steps to have the premises assessed for HHS compliance and it was entitled to rely on the report it received.
The tenant produced no evidence such as a competing HHS assessment to prove that the premises were not HHS compliant. This being her application, the onus of proof rests with her.
In the absence of conflicting report evidence as to HHS compliance, I make no award of exemplary damages.
The tenant has proved that there is asbestos at the premises, the decking contains three separate kinds of asbestos according to the laboratory analysis the tenant produced in evidence.
Though replacement of the decking was recommended, the owner (based overseas) chose to apply coats of paint to seal the decking material and secure the asbestos. The tenant referred to this as a ‘band-aid’ remedy.
The tenant’s concern is understandable. However, she has not identified any harm that arose because of the unrepaired decking, nor has she provided evidence that painting the decking is not an appropriate remedy. Deck replacement, while recommended, has not been proved to be necessary.
Without evidence of a failure by the landlord to undertake a necessary repair correctly (that is replacement of the deck versus the painting of the deck to seal it) the tenant has not proved any unlawful act by the landlord failing to repair and maintain the premises. I therefore make no award of exemplary damages.
Finally, the tenant mentioned costs she had incurred – rent paid for what she said were not adequate premises; power costs; moving costs and the asbestos testing fee.
While she did not seek reimbursement of the costs of power and other expenses, the Tribunal would not have awarded them. Nor would it have interfered with the rent. Result
The tenant’s application is dismissed. Comment
The landlord’s representative said she would be prepared to request the [City] Council to assess the asbestos at the property to establish whether the repair work is adequate or whether other work is required. The Tribunal would encourage the landlord to do that to ensure that there are no health and safety issues that need to be rectified. Name suppression
Both parties applied for a name suppression order. The tenant is not entitled to a name suppression order as her application is unsuccessful. The landlord is entitled to name suppression as its defence has been fully successful – see section 95A RTA.

Tenancy Tribunal case 4681733 — Leaks

At a glance

Tenancy Tribunal case 4681733 — Leaks

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions