What was Tenancy Tribunal case 4683371 about?

The tribunal order states: By consent, the tenancy of [The tenant/s] at [Tenancy address suppressed] is

How much money was awarded in case 4683371?

Property Damage: $200.00 awarded to tenant; Compensation: Loss of use and enjoym…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4683371?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4683371?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9733431-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4683371 about?

The tribunal order states: By consent, the tenancy of [The tenant/s] at [Tenancy address suppressed] is

How much money was awarded in case 4683371?

Property Damage: $200.00 awarded to tenant; Compensation: Loss of use and enjoym…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4683371?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4683371?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9733431-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4683371 — Property damage

Claims and awards in Tenancy Tribunal application 4683371 — net $2,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of use and enjoyment of tenancy	$2,000.00	Loss of use and enjoyment of tenancy
Compensation: Damage to chattels	$200.00	Damage to chattels
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,220.44
Total payable by Landlord to Tenant	$2,220.44

Claims and awards in Tenancy Tribunal application 4683371 — net $2,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of use and enjoyment of tenancy	$2,000.00	Loss of use and enjoyment of tenancy
Compensation: Damage to chattels	$200.00	Damage to chattels
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,220.44
Total payable by Landlord to Tenant	$2,220.44

Order

By consent, the tenancy of [The tenant/s] at [Tenancy address suppressed] is now a periodic tenancy and may be terminated by the tenants giving 28 days’ notice at any time Provided However that the tenancy will not continue beyond 2 June 2024.
[The landlord/s] must pay [The tenant/s] $2,220.44 immediately, calculated as shown in table below:
The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing which was by way of rehearing.
The Tribunal heard evidence from the parties as well as from a witness for the tenant and a witness for the landlord. Background
The tenancy started on 23 May 2022. It is a fixed term tenancy until 2 June 2024.
The tenants first noticed a problem with what appeared to be a ceiling leak in September 2022. The landlord arranged for a plumber to attend. The plumber cut a hole in the bedroom ceiling in the main bedroom to let the affected area dry and by October 2022 the problem appeared to have resolved.
However, from April 2023 evidence of a leak appeared again and the tenants experienced discomfort and health issues due to mould. They contacted their property manager several times to express their concerns.
At the end of July 2023, the tenants’ property manager told the tenants that urgent access was required for a plumber to assess the leak. The plumber advised the property manager that he had contacted the tenants by phone to arrange entry, but they deny that he did. Their phone records do not show any contacts from the plumber. However, they granted access as they wanted the problems fixed.
One of the tenants and the plumber assessed the roof, and the plumber cleared some blocked gutters. Still the problem persisted, and a second hole was cut into the ceiling followed by the installation of an access panel.
In October, the leak reappeared following several rainy days. On 11 October 2023, the plumbers took down half of the ceiling gib in the main bedroom and then replaced the ventilation ducting.
In December part of the ceiling in the other bedroom had to be taken down.
Unlike the earlier communications with the plumbing contractor, the tenants are happy with the contractors currently working at the premises. They feel that they have been informed and respected.
Currently, both bedrooms are unusable, and the tenants have moved their belongings into the lounge. They are living and sleeping in that room.
From 4 December 2023, the landlord has stopped charging rent until the work has been completed. Issues
The tenants seek the following orders from the Tribunal: •Compensation in the form of a 50% rent reduction from April to September (when they say the rent was first reduced) for the loss of use of the main bedroom. •Compensation for loss of their chattels damaged by mould. •Compensation for their loss of enjoyment of the tenancy including the effects on their health due to what they allege was inadequate landlord maintenance. •Compensation for not being able to access the premises on 2 occasions when the premises were deemed a work site – 12 hours in total. •Compensation for the landlord’s failure to give proper notice of entry by contractors. •Exemplary damages for the landlord’s failure to maintain and repair the premises. Issue raised at the hearing
Aside from the issues raised in the application, during the hearing the issue arose as to how the tenancy should continue. Both parties want the tenancy to end. But the tenants have not yet found another tenancy.
By agreement, the parties decided that the tenancy would continue as a periodic tenancy which enables the tenants to give 28 days’ notice at any time without any penalty or consequence. They also agreed that the tenancy would not continue beyond the current end date – 2 June 2024, which it otherwise would on a periodic tenancy.
I have made a consent order to reflect the parties’ wishes. Compensation in the form of a 50% rent reduction from April to September (when they say the rent was first reduced) for the loss of use of the main bedroom
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 tenants have suffered a considerable loss of enjoyment of the tenancy due to the on-going ceiling leak in the main bedroom which has caused the premises to have high moisture levels resulting in mould. The tenant’s witness, a building inspector, and a licensed building practitioner described that in his evidence, although he did not take moisture level readings.
The tenants’ evidence and the photos they produced show that moisture and mould were a consequence of the leaking.
The landlord accepts that the tenants suffered a loss of enjoyment. Now that both bedrooms have become unusable (meaning the tenants have to live and sleep in the lounge) the landlord has reduced the rent to nil, and before that implemented a rent reduction ordered by the Tribunal at the first hearing.
The tenants’ application for a 50% rent reduction backdated to April 2023 is unrealistic. The level of disruption varied over time; mostly it involved one bedroom only.
The Tribunal assesses compensation in cases such as this on a global basis rather than the piecemeal basis advanced by the tenants. In other words, it considers all the effects of the leaking that resulted in a loss of use and enjoyment of the tenancy including the loss of use of the bedroom, the effects of the moisture and mould including on the tenants’ health, and their loss of access for the two 6-hour periods when the premises were considered a work site.
Having considered all the evidence, both documentary and oral, I find that the tenants suffered a significant loss of enjoyment and use of the premises, worse at some times than at others.
For this loss of enjoyment and use of the premises I award the tenants compensation of $2,000.00 Compensation for loss of their chattels damaged by mould
Compensation for actual damage can be considered separately from compensation for loss of enjoyment and amenity.
The tenants sought compensation of $282.00 for the loss of chattels and clothing due to mould damage. For their furniture (which they sent to recycling) they sought compensation of $200.00 and for a damaged jacket (which they donated to charity) they sought $82.00. They provided evidence of the purchase cost of these items.
The Tribunal accepts that the tenants suffered a loss of their chattels and a jacket due to mould, a direct consequence of the moisture levels resulting from the on-going ceiling leak.
The Tribunal must take depreciation and fair wear and tear into account. The tenants are not entitled to new for old replacement costs.
I award the tenants compensation of $200.00 as compensation for their damaged and now disposed of chattels. This reflects the principles to which I have referred. Compensation for their loss of enjoyment of the tenancy including the effects on their health due to what they allege was inadequate landlord maintenance
I have addressed this issue under the global award of compensation made for the tenants’ loss of enjoyment and use of the tenancy and the overall effects on them of the ceiling leak that caused moisture and mould. Compensation for not being able to access the premises on 2 occasions when the premises were deemed a work site – 12 hours in total
I have addressed this issue under the global award of compensation made for the tenants’ loss of enjoyment and use of the tenancy and the overall effects on them of the ceiling leak that caused moisture and mould. Compensation for the landlord’s failure to give proper notice of entry by contractors
I explained to the tenants at the hearing that even if the landlord (or their contractors) failed to give proper notice to attend the premises for repairs, the Tribunal is not minded to separately award compensation. The evidence on this issue was in conflict. Even so, the tenants agreed for the contractor visits to go ahead for the understandable reason that they wanted the leak to be fixed.
As with their allegations that some of the landlord’s contractors spoke rudely to them and offended them, the Tribunal awards no additional compensation. Hurt feelings do not normally form the basis for an award of compensation. Exemplary damages for the landlord’s failure to maintain and repair the premises
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 of the Residential Tenancies Act 1986 (RTA).
In Birch (referred to above) 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.
The tenants allege that the landlord failed to maintain and repair the premises. I do not accept that submission.
The trustee explained that as one of the trustee owners of the premises he relied on contractors for advice. He said the contractors he engaged had differing opinions about the cause of the leaking. After ruling out a roof leak, the cause was identified as a faulty ventilation system encased above the ceilings in the two bedrooms.
The trustee said they tried to be good landlords and they tried to accommodate the tenants as best they could. He said the trustees just wanted the problem fixed but identifying the cause had taken time.
The plumbing contractor engaged by the landlord, said the cause of the leak was difficult to find. He said the various contractors had to act in stages. Initially reported as a roof leak, he said he tried various roof repairs and cleared blocked gutters. He eventually found a leak in the ventilation hose. He fixed that but the problem continued.
The witness said that it was the roofing contractor who identified condensation as the cause and the problem was identified as a faulty ventilation system.
Although the tenant said he believed that the cause of the problem was a roof leak, the evidence does not show that.
The evidence shows that the cause of the on-going leaks was the faulty ventilation system encased in the ceiling which blew condensation up into the ceiling.
To succeed on an application for exemplary damages, the tenants would need to establish that the landlord turned their mind to the act of failing to maintain and repair the premises and then deliberately set about to commit that act.
I find that the tenants have not established any intentional act by the landlord. That the cause of the problem took time to identify and fix does not establish that the landlord acted with intent.
I dismiss the tenants’ application for exemplary damages. Result
The landlord will pay the tenants compensation of $2,200.00 and the filing fee of $20.44, a total of $2,220.44.
The application for exemplary damages is dismissed. Name suppression
Both parties sought a name suppression order. I grant both applications because the tenants (in their application) and the landlord (in their defence) have been almost equally successful.

Tenancy Tribunal case 4683371 — Property damage

At a glance

Tenancy Tribunal case 4683371 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions