What was Tenancy Tribunal case 4687502 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 4687502?

Case, And The Tribunal Orders Suppre…: $983.71 awarded to landlord

What type of tenancy dispute was case 4687502?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Harassment, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4687502?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9546971-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4687502 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 4687502?

Case, And The Tribunal Orders Suppre…: $983.71 awarded to landlord

What type of tenancy dispute was case 4687502?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Harassment, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4687502?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9546971-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4687502 — Rent arrears

Claims and awards in Tenancy Tribunal application 4687502. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
case, and the Tribunal orders suppression of the names and identifying details of both parties. 2. The landlord is to pa	$983.71		case, and the Tribunal orders suppression of the names and identifying details of both parties. 2. The landlord is to pa

Claims and awards in Tenancy Tribunal application 4687502. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
case, and the Tribunal orders suppression of the names and identifying details of both parties. 2. The landlord is to pa	$983.71		case, and the Tribunal orders suppression of the names and identifying details of both parties. 2. The landlord is to pa

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the names and identifying details of both parties.
The landlord is to pay the tenant $983.71.
The Bond Centre is to pay the bond of $870.00 to the tenant

Reasons

Both parties attended the hearing. The landlord’s partner, Mr P was also in attendance.
The tenancy is located in a block of apartments, located on a hill overlooking the Whanganui river. The parties knew each other before the commencement of the tenancy. They signed a fixed term commencing 15 April 2022 and ending on 17 April 2023.
The landlords helped the tenant move to Whanganui and move into the premises. Relations deteriorated between the parties over the term of the tenancy.
The landlord used an app called myrent.co.nz and the evidence of their communication was produced from that. Corroborative evidence of other communication between the parties was not produced. The tenant had some conversations with Mr P, who was attending to some matters on the property. He is not a party to the tenancy agreement, but it was reasonable for the tenant to assume that as he is Ms Q’ partner and he attended to issues about the property, that he had some representative capacity. This was further apparent in his conduct during the hearing when he was frequently speaking to the landlord and advising her. During the tenancy, he did not tell the tenant to direct her concerns to Ms Q.
The tenant vacated the premises on 19 May 2023 after the fixed term tenancy had become a periodic tenancy.
The tenant seeks a refund of her bond and has claimed compensation and exemplary damages for: a. One week’s rent paid in advance b. Failure to provide a receipt for the bond c. Removal of couch from property d. Failure to provide clean premises – ants e. Breach of Healthy Homes Standards – draughts f. Breach of Healthy Homes Standards – moisture ingress g. Failure to maintain – leak in kitchen, water accumulation from shower, dampness in bedroom h. Breach of quiet enjoyment – no sound insulation i. Retaliatory notice
The landlord has cross-applied for rent arrears, compensation, exemplary damages refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The landlord’s claims are as follows: a. Rent arrears$837.87 b. Oven cleaning 4 hrs$120.00 c. Cleaning 8 hrs$240.00 d. Storage of tenant’s items$925.00 e. Removal of smoke alarm f. Breach of other tenants’ quiet enjoyment.
Although the tenant was not aware of the landlord’s evidence before the hearing, evidence was heard and I did not find that the tenant was prejudiced in her defence of those claims.
The onus of proof is on the person seeking to establish a fact. That means that they must provide sufficient evidence to prove their case. The standard of proof is the balance of probabilities. The Tribunal must be satisfied that something is more likely than not to be true. The landlord’s claims Termination of tenancy and rent
The term of the tenancy agreement was fixed from 15 April 2022 to 17 April 2023. The agreement included the following: Note: Fixed-term tenancies entered into from 11 February 2021 will automatically convert to periodic tenancy agreements at the end of the fixed-term, unless: •the landlord gives written notice using one of the reasons listed in the Residential Tenancies Act 1986 for terminating a periodic tenancy (with the required notice period) to end the tenancy on the fixed-term expiry, or •the tenant gives written notice (no reason required) of their intention to not continue with the tenancy at least 28 days before the end of the tenancy, or •before the expiry, both the landlord and tenant agree to extend, renew or end the fixed-term tenancy.
The agreement also includes the following ‘Outline of the Provisions of the Residential Tenancies Act 1986’
Notice to terminate tenancy Fixed-term tenancies Fixed-term tenancy agreements that are entered into from 11 February 2021 and are for longer than 90 days, will automatically convert to a periodic tenancy at the end of the fixed-term unless: › the landlord gives written notice using one of the reasons listed in the Residential Tenancies Act for terminating a periodic tenancy with the same required notice period (see below) to end the tenancy on the fixed term expiry; or › the tenant gives written notice (no reason is required) at least 28 days before the end of the tenancy, of their intention to not continue with the tenancy; or › before the expiry, both landlord and tenant agree to extend, renew, or end the fixed-term tenancy. Periodic tenancies Tenants terminating a periodic tenancy must give at least 28 days’ written notice. Tenants may end the tenancy for any reason, and do not need to give a reason to the landlord. Landlords are no longer able to terminate a periodic tenancy without cause (without a reason) by providing 90 days’ written notice. ...
The agreement goes on to set out other notice periods for landlords under periodic tenancies, noting that the list is not exhaustive.
On 13 March 2023 the landlord messaged the tenant saying: Good Morning Rachel, I am seeking mutual agreement to end the tenancy at 17/15 Putiki Dr, Durie Hill, when the 12 month fixed term ends on 17 April 2023. We need to find the source of the leak into the kitchen and that means removing ceilings from at least the kitchen and don't wish to delay doing remedial work much longer. Please let me know your agreement at soon as possible.
The tenant did not reply. She spoke to Mr P, saying she needed time to get the money needed for a new bond.
The tenant said that she received this email on 18 March: Hi Rachel, In case you aren't in agreement to end the tenancy next month so we can start repairs, I have sent a 90 days notice from the date of 17 April when the tenancy would become periodic. I will also be sending a rent increase notice as Scott and I graciously discounted your rent here at the [premises]. Thank you, Trudy
The tenant said that on 18 March 2023, she received a 90 days’ notice to terminate a periodic tenancy from the landlord under section 51(2)(f)(i)(ii) which states: (2)A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (f) 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.
Neither party produced a copy of the 90 days’ notice that was issued on 18 March 2023.
The tenant does not believe she was subject to the requirement to give at least 28 days’ notice because pressure was put on her by the landlord to leave as soon as possible and she was not told she needed to give 28 days’ notice. She told the Tribunal that she was told by the landlord in writing, and on two occasions verbally by Scott Phillips, that she needed to vacate as soon as possible so they could begin urgent repairs. She was told large sections of the ceiling needed to be demolished and there would be building dust inside the kitchen cupboards. The tenant said she was told she would not be able to stay in the apartment while the repairs were being carried out and they did not want to wait, because they were concerned the leak above the kitchen was doing damage and they needed to find the source of the leak and get the repairs started immediately.
The tenant said that on 7 May 2023, she told the landlord verbally that she had found a new flat and would be vacating on 19 May 2023, which was the earliest day the new flat was available. The landlord said, “Is that 28 days?” The tenant said to her “No, was I supposed to give you 28 days?” The landlord said “Yes. We’re periodic now. We’ll just take that out of your bond.” The tenant said that the 28 days’ notice period was never mentioned in any of the previous exchanges, just their urgency for her to leave as quickly as possible. The tenant’s argument was that being told repeatedly by the landlord to leave as soon as possible amounts to a waiver from the landlord to end the periodic tenancy early.
For the fixed-term tenancy to end on 17 April 2023, one of the following had to have happened: a. The parties had agree to the termination. b. The tenant to have given at least 28 days’ notice on or before 20 March 2023. c. The landlord to have given notice in accordance with any of the termination grounds contained in the Act.
Because the landlord had not given notice, the tenancy became a periodic tenancy on 17 April 2023. Therefore, the tenant had to give 28 days’ notice. This was set out in the tenancy agreement. It is usual for a landlord to remind the tenant of that in any notice that the landlord subsequently gives. In other words, even if the landlord has given 90 days’ notice, the landlord usually reminds the tenant that they may terminate sooner.
Although the tenant did not comply with her responsibilities to give 28 days’ notice, the landlord did not dispute that the tenant was asked to vacate as soon as possible. The period of the fixed term had come to an end and the date that the tenant vacated was one month after that. In the circumstances of the tenant’s communications with the landlord, it was not unreasonable for her to believe that she was not required to give 28 days’ notice and they had waived their right to receive such notice. Accordingly in the circumstances of this case, I do not find that the tenant must pay rent for the usual notice period.
The tenant believed that she had paid an extra week’s rent in advance and sought a refund. The landlord provided a rent summary which shows that the tenant had paid rent up to 18 May 2023. She moved out on 19 May 2023. Therefore, she owes one day’s rent.
The parties agreed that the tenant had been given notice of a rent increase to $345. Although neither party produced a copy of that notice, in her application, the tenant had said it was effective from 19 May 2023. Therefore, I have calculated one day’s rent as $49.29 for 19 May. I order the tenant to pay the landlord $49.29 in rent arrears. Cleaning
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, See section 40(1)(e) Residential Tenancies Act 1986.
The landlord said that the tenant did not leave the premises reasonably clean and tidy, and claimed 8 hours’ cleaning. The tenant said she had done some cleaning but agreed that she had not cleaned all surfaces. In particular she had left the kitchen because she thought they were going to be removing the ceiling.
I find that she should have ensured the rest of the property was vacuumed and surfaces wiped. I order her to pay $60.00 for two hours’ cleaning.
The tenant had not cleaned the oven and I accept that it would have required four hours to clean it. I order $120 for oven cleaning. Removal of smoke alarms
[The landlord/s]claims the tenant has removed or interfered with the smoke alarms.
A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) Residential Tenancies Act 1986. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.
The landlord said that when she attended the property in June for a final inspection, the smoke alarms were on top of the fridge.
The tenant said that the batteries had run out and she had got the alarms down and removed the batteries. She had left a new double pack of batteries beside the smoke alarm.
By not installing the batteries, the tenant has rendered the smoke alarms inoperative. Therefore, she has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The purpose of the regulations is to try to preserve life first and foremost and secondly property. The tenant’s obligations to keep the smoke alarms operable is to reduce the risk of harm to herself and other tenants and minimise the risk of extensive damage to the landlord’s property.
I find that the tenant knowingly did not instal the batteries in the smoke alarm. However, the fact that she was leaving the premises unoccupied reduces the risk of harm. Nonetheless, there is a public interest in reminding all tenants of their obligations in this regard and I have decided that she should pay the landlord $500 in exemplary damages. Breach of quiet enjoyment
The landlord claimed that the tenant the tenant has disturbed their neighbours by asking for marijuana.
A tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 40(3A)(d) and Schedule 1A Residential Tenancies Act 1986.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The landlord produced no evidence from any neighbours and in any event, such a request would be unlikely to amount to harassment. This claim is dismissed.
The landlord also said that she had been harassed by the tenant telling another tenant that the landlord had not fed the other tenant’s cat.
There are circumstances in which the landlord may seek termination of a tenancy for anti-social or violent behaviour by a tenant to landlord, but there is no provision for the Tribunal to order exemplary damages for harassment. This claim is dismissed. Storage
The landlord claimed $925 for storage of the tenant’s items in her garage during the tenancy. It was not apparent that there was any agreement over storage costs but in any event, this arrangement formed no part of the tenancy agreement. There is no jurisdiction for this Tribunal to consider a claim for compensation for storage. The tenant’s claims Refund of bond and rent
Both parties’ claims in relation to rent have been considered above under the landlord’s claims.
The refund of bond has been calculated on the basis of the orders for compensation for both parties. Bond receipt
The tenant says that the landlord did not provide a receipt for the payment of the bond.
Section 19 of the Act says that a person who receives a bond, they must give the payer a signed, written receipt, and must lodge the bond within 23 working days. Failure to comply with either of these is an “unlawful act”, for which exemplary damages of up to $1,500 may be ordered. 1
The receipt must show the address of the premises to which the payment relates; the amount and nature of the payment; the date of the payment; and the name of the payer (if known to the person who receives the payment).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The tenant produced a screenshot from myrent.co.nz showing that on 28 April 2022 a bond of $870 had been paid to SB ‘P’ and TY ‘Q’ for [address] and the reference was [the tenant]. The bond lodgement had been uploaded on 2 May. There is the facility in the app for a receipt to be uploaded. Because no receipt had been issued, the tenant had not done so.
I accept that no signed receipt was issued by the landlord. However, the information that must be on such a receipt was available to the tenant via myrent.co.nz. In this age of digital records of payments, it is less common for signed receipts to be issued in many circumstances. Had the payment of the bond been made in cash, then such a receipt would have been imperative.
The tenant was not disadvantaged by the lack of a paper signed receipt, and only became aware of this requirement after the tenancy had terminated. Through 1 The tenant also noted that under Schedule 1B, the landlord is liable to a fine of $3000. Such a failure is a It may also be the subject of an “infringement notice” issued by the Chief Executive Officer of the Ministry of Employment, Business and Innovation. No such infringement notice has been issued and the Tribunal does not deal with such notices. myrent.co.nz there is a clear record of the payment and more importantly the lodgement of the bond within the required timeframe. I am not satisfied that the landlord intended not to comply with the law, and I do not find that the tenant has been adversely affected by the lack of signed receipt in any way. Accordingly, I make no order for exemplary damages for the lack of signed receipt. Removal of settee from flat
The tenant says that the landlord removed a settee from the premises without any warning.
When the tenant moved into the property there was a settee there. She believed it belonged to the former tenant, but the landlord advised the Tribunal that it was hers. It was not listed in the chattels, but the tenant used it. The landlord said that the tenant could store some of her belongings including a couch in a garage on the property and could use the settee in the meantime.
The landlord got frustrated with the tenant not moving her belongings out of the garage and so during an inspection, she removed her settee from the flat. On 3 October 2022, the tenant came home to find it gone.
The tenant seeks exemplary damages for the removal of the couch. She says that the landlord has varied the tenancy agreement without a written variation of the tenancy agreement and so had breached section 13B of the Act.
The difficulty is that there is no mention of any chattels in the written agreement and so a written variation was not required.
The landlord gave the tenant no warning that she was going to remove the settee. She was entitled to enter the property, having given notice of an inspection, but I find that her removal of a significant item of furniture was an interference with the tenant’s quiet enjoyment of the premises.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
As noted above, harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I do not find that the extent, frequency, or duration of the landlord’s actions amount to harassment and so I make no order for exemplary damages, but the tenant is entitled to some compensation for the distress of finding the settee removed. It is irrelevant that the tenant had other chairs she could sit on. The landlord’s actions were a breach of the tenant’s rights, and the landlord is ordered to pay the tenant $150.00 in compensation. Disposal of tenant’s couch
The tenant said that on 20 October 2022 the landlord sent an email informing her that the tenant’s couch, which was in the landlord’s garage, would be “put out of the garage over the weekend.” It was Labour Weekend and the tenant was not in Whanganui. She replied on 21 October 2022 saying that she was not able to retrieve the couch and asked the landlord to please keep it secure until she got back and could arrange to have it moved. At 4.30pm on 21 October 2022, the landlord emailed her to say they had moved her couch out of the garage and left it in “the carpark.” The tenant had planned to be away for the whole weekend, but because of this incident she had to come back to Whanganui early. She arrived back at 10am on Sunday 24 October and found that the landlord had put her couch out with the rubbish pile, in amongst the rubbish.
The landlord said that she had put it outside, surrounded by rubbish bins to protect it.
The tenant says this is a breach of section 33 which says that the landlord may not seize or dispose of the tenant’s goods.
The goods were not within the premises. The storage arrangement did not form any part of the tenancy agreement. Accordingly, the Tribunal has no jurisdiction to determine this dispute. Failure to provide clean premises – ants
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 by failing to provide the premises in a reasonable state of cleanliness. She says this was evidenced by the number of ants in the property. She sought reimbursement for two cans of insect spray as well as exemplary damages.
The landlord said that there is a problem with ants in the property and that she had sprayed the building. She had also provided wheelie bins outside for the tenants so that they could get their rubbish outside the apartments in an attempt to reduce the attraction of ants.
Pest control is a matter that may be a landlord or tenant responsibility, depending on the nature, extent or cause of the issue. It is reasonable that a tenant should attend to extermination of insects, mice and rats in the first instance. Should it become apparent that an ongoing problem with pests is because of a failure of the landlord to maintain a property, it may become the responsibility of the landlord. However, if the tenant does not raise it with the landlord, then they may not be aware of the problem.
In the present case the parties agree that ants were an issue at the property, but the tenant has not produced any evidence to show that it was because the landlord failed to provide the premises in a reasonable state of cleanliness or because of a breach of any of the landlord’s other obligations under section 45. The tenant’s claim is dismissed. Failure to maintain the premises: bathroom
The tenant says that the landlord failed to meet their obligations in respect of maintenance. She noted that the complex was built in 1915 and the bathroom appeared to be original. She said there was a wooden wardrobe and an old square porcelain sink sitting on an old wooden cupboard. There was an old cast iron clawfoot bath that was missing the hot tap. Someone had installed a modern shower head over one end of the bathtub. The splash from the shower went down the wall and onto the floor. The skirting board under the shower was rotten and the lino under the bath was peeling off the floor. There were borer holes in the skirting boards and in autumn, the board near the shower sprouted mushrooms.
The tenant said that the landlords were aware of the problem and fixed a piece of wood to the wall above the edge of the bathtub to try and direct the splash into the tub. There was a deep U-shaped groove cut into it. The water pooled in the groove and ran the length of the piece of wood and spilled onto the floor. She asked the landlord to seal off the ends of the wood with some silicone, or something to stop the water running. They said they would fix it, and nothing ever happened.
The tenant said that she got tired of cleaning up water. She bought and modified a second shower curtain to stop the splashes, which she said had obviously been a problem for a long time.
The tenant claimed this was a breach of section 45(1)(b) which requires the landlord to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and period during which the premises are likely to remain habitable and available for residential purposes.
The tenant said that the damp from the bathroom went right through the wall into the bedroom, causing damage to the skirting board in the bedroom. She said that the air in the bedroom was wet and really cold going into winter. She purchased a second-hand dehumidifier to take some of the moisture out of the bedroom.
The tenant sought exemplary damages for the landlord’s failure to meet their obligations in respect of maintenance, and compensation.
The tenant asked the Tribunal to make an order for the recovery of $74 from the landlord, which was the total amount paid for a second-hand dehumidifier ($41.00), a shower curtain from The Warehouse ($8.00) and $25.00 for 1hour of her time.
The tenant provided photographs of the area behind the bath, showing a build- up of grime, lifting of paint and uneven, slightly bulging lino. Another photograph showed a crack above the skirting board of the bedroom, which she said was caused by damp. The parties agreed that the hot water tap for the bath did not work.
The landlord said that she believed the system set up for the shower was suitable. She said there was either two curtains already or one long one, she could not remember which. Mr P said that there were double brick walls, and he did not accept that water had seeped through to the bedroom. He said that hot water could not be connected to the tap because it was a major task with the age of the bath. He said that the crack in the bedroom wall was there at the start of the tenancy.
I would have expected the landlord to know exactly how many curtains were in place and to have satisfied herself that the solution for the shower was satisfactory. I accept that the tenant needed to find a solution to reduce the amount of water that was accumulating when the shower ran. The landlords were aware of this issue but took no steps. I order the landlord to compensate the tenant $33.00 for the shower curtain and one hour of her time.
The tenant has not established that any moisture in the bedroom was as a result of the dampness in the bathroom and so I make no orders in that regard.
Although from the state of the area behind the bathroom, it appears that the landlord may need to undertake further refurbishments, the tenant has not established what other maintenance was required and how that affected her tenancy. I do not find that the landlord has committed an unlawful act and make no order for exemplary damages. Failure to maintain - kitchen
The tenant said that there was a crack in the kitchen ceiling and that 3 or 4 times water dripped through. There is an apartment above the tenant’s one.
Mr P attended to look at the issue.
On 26 January 2023 the landlord sent a message saying that a plumber was coming the next morning to sort the water leak which was likely coming from the hot water cylinder in apartment 23. She noted that they may need to remove the ceiling.
A leak in the ceiling is not of itself evidence of a failure to maintain the premises. A failure or delay in trying to fix it may be. At the hearing the landlord said that in retrospect she did not believe there was a leak. This begs the question as to why the tenant was given a 90-day notice to vacate for extensive repairs if there was no leak.
In any event, the tenant has not established that the landlord delayed or refused to attend to this matter. I do not find that the landlord has not complied with her responsibilities under section 45. This application is dismissed. Breach of Healthy Homes Standards – draught-stopping
The landlord supplied a Healthy Homes Standards (HHS) Compliance Statement at the start of the tenancy.
The tenant said that the premises did not comply with the Draught Stopping Standard and therefore the landlord’s statement of compliance was false. The tenant claims that the landlord has breached her obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
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. 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).
The tenant said that the original wooden window and door frames were badly warped and did not close properly. She said there were sizable gaps around both doors and all the river facing windows, which allowed significant airflow into the apartment. When the front door was closed, there were gaps between 3mm and 5mm around the entire door frame. When the balcony door was closed, there were gaps of 1.5cm around the entire door frame. A significant amount of air came through the balcony door. She said the draughts from both doors combined to form a wind tunnel in the hallway.
The tenant said that the small side window in the lounge had gaps of 3mm right around the frame The bay window facing the river was warped and the wood was rotting. The right-side window had gaps of between 5mm and 1cm around the frame. The left side window was stuck closed and had gaps around the frame ranging from 1cm to 2cm. It let in a significant amount of wind and rain.
In early June, the tenant showed the landlord that she had packed the gaps around the windows with newspaper to try and keep the cold air out. The landlord said “Well, if you’re happy with it like that, we’ll just leave it.”
The tenant produced photographs of the walls and doors, including those with the newspaper packed around. She said that all the gaps were 3mm or greater. The newspaper got wet when it rained and fell out of the gaps in high winds. The tenant said it was not possible to heat the apartment and she could not stop cold air from coming in or stop warm air from escaping.
The landlord said that she had undertaken the Healthy Homes assessment herself. She said there was draught-stopping tape around the windows and doors. She said that she had put some in and some was already there. She was unsure which doors and windows she had attended to. The landlord accepted that she was aware of the newspaper and did not want to be rude to the tenant about her home handyman attempts.
The tenant agreed that there was some insulation foam around the doors and windows but because the doors had warped, it was of no effect.
Regulation 26 of the HHS says: Gaps and holes that allow draughts (1) The premises must be free from gaps between, and holes in, building elements that— (a) are not intentional parts of the construction of the premises (such as drainage and ventilation openings); and (b) allow draughts into or out of the premises; and (c) are unreasonable. (2) In determining whether a gap or hole is unreasonable for the purposes of subclause (1)(c), the following matters may be taken into account: (a) the size and location of the gap or hole: (b) the extent of the draught that is allowed through the gap or hole: (c) if there is more than 1 gap or hole at the premises, the extent of the total draught that is allowed through those gaps and holes: (d) the likely impact that a draught through the gap or hole will have on heat loss from the premises: (e) any other relevant matters, subject to subclause (3). (3) In determining whether a gap or hole is unreasonable for the purposes of subclause (1)(c), the age and condition of the premises or tenancy building must not be taken into account.
The tenant referred to draught stopping guidance document accessed on the Tenancy Services website, which says: As a rule of thumb, gaps or holes with a width greater than 3mm in or around the walls, ceilings, windows, doors and floors that let air into or out of the home will usually require blocking to prevent unreasonable draughts. This means that if the edge of a New Zealand $2 dollar coin can fit in the gap, then the gap needs to be sealed. 2
The tenant said that all the gaps were 3mm or greater. 2 See page 5
In this case I have determined that the landlord made an effort to comply with the Draught-Stopping Standard in the first instance and may have believed that she had done so at that time. It is evident that draught-stopping tape was in place. For that reason, I do not find that she made a statement that she knew to be false or misleading, and so she has not committed an unlawful act under section 13(1F).
However, as soon as the tenant told the landlord of the draughts and showed her the newspaper being used to block the draught, the landlord needed to satisfy herself that whatever measures she had put in place were satisfactory.
The purpose of the standard is to reduce draughts in the property, not simply to measure whether there is a gap of 3mm or more and tick a box. The question is whether the gap is “unreasonable”, taking into account the factors set out in regulation 26. The Draught-Stopping Standard guidance document provides tips such as checking if a gap is causing a draught by feeling for cold air along the gap with the back of a wet hand. The guidance of 3mm is a “rule of thumb” only.
When the tenant told the landlord there were draughts and showed her the newspaper, the landlord did nothing. She did not undertake any further tests to check for draughts or seek an independent opinion. She provided no photographs or measurements of any of her own assessments before, during or after the tenancy. Simply pointing to the tick that she had placed in the HHS compliance statement is not sufficient.
Although there is tape around the balcony door, the photos show light showing through, particularly at the bottom of the door. There is newspaper around the windows that look over the river. One of the windows is warped and the tenant could not open or shut that window properly. The tenant said that the wind comes off the river, blowing through the gaps.
I find that the extent and combination of gaps in the balcony door and windows which face the river are unreasonable and in breach the draught-stopping standard. I find that the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
From June 2022 the landlord was aware that there was a problem with draught- stopping and that it was affecting the tenant’s ability to keep her home warm. There is a public interest in reminding all landlords that compliance with the draught-stopping standard is about reducing heat loss, not simply measuring gaps. Ms Q also needs to be reminded that it is her responsibility to inform herself about her obligations as a landlord. The maximum award of exemplary damages under this section is $7,200. On this occasion, I order the landlord pay the tenant $2,400 in exemplary damages. Breach of Healthy Homes – moisture ingress
The tenant provided no evidence that the landlord had failed to comply with the HHS moisture ingress standard, which relates to drainage and diversion of rain and stormwater. That claim is dismissed. Breach of quiet enjoyment – other tenants
The tenant said that there was insufficient sound-proofing in the property. Her quiet enjoyment of the premises was disrupted, particularly once the tenancy below her was converted to an ‘airbnb’ because of the increased activity during the stays and cleaning in between.
The landlord said that this was simply apartment living and there was no breach of any obligations.
Under section 45(1)(e) the landlord must take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
I accept that it is possible that conversion to ‘airbnb’ may pose some challenges for the landlord’s compliance with section 45(1)(e), but the tenant has not satisfied the Tribunal that the tenant asked the landlord to remedy any breach or placed them on notice in any way. The tenant’s claim for disturbance from other tenants is dismissed. Retaliatory notice
The tenant says that the landlord giving notice to terminate was a retaliatory notice for her defending herself against their abusive and unlawful behaviour.
Section 56 of the Act allows the Tribunal to declare a termination notice invalid and order exemplary damages if satisfied that the landlord was motivated in giving the notice wholly or partly by the exercise of proposed exercise of any right conferred under the Act. Such an application must be brought within 28 working days of receipt of the notice.
In the present case, such an application would need to have been made by 19 April, taking into account Easter. In any event, the tenant has not provided evidence of her attempt to assert a right under the Act, such as the service on the landlord of a Notice to Remedy a Breach.
The application in relation to retaliatory notice is dismissed.
The tenant implied that the landlord had terminated without grounds. She referred to a previous Tenancy decision between the landlord and a different party where work had not taken place. She said that the notice given to her to terminate under section 51 because the landlord proposed extensive work did not specify the work to be done.
The tenant did not seek an order under section 60AA and the evidence before the Tribunal was not adequate to support such a claim.
The landlord should take notice of the provisions of sections 51, 56 and 60AA and ensure ongoing compliance.
Because both parties have had some success, there are orders for suppression of their names. There is no order for reimbursement of the filing fee to either party.

Tenancy Tribunal case 4687502 — Rent arrears

Tenancy Tribunal case 4687502 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions