Published tribunal order
Tenancy Tribunal case 4697891 — State of repair at 35 Monro Street, Blenheim, Blenheim 7201
Decided 6 Mar 2024 · Published 6 Mar 2024 · Application 4697891
- State of repair
- Cleanliness
- Exemplary damages
Party names are redacted in the official published order.
Order
- Mml Developments Limited must pay [The tenant/s] $5,800.00 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing. A court-appointed interpreter was made available.
- The tenancy has now ended so the tenant application was varied to consider compensation and exemplary damages only.
- The tenant sought compensation, exemplary damages and return of the bond.
- 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.
- When considering claims, the Tribunal must also consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
- 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. Healthy Homes Standards
- The tenants made claims relating to the Health Home Standards. A detailed report was commissioned on their behalf regarding this.
- However, two points of note. Firstly, the landlord had 120 days in which to comply with the HHS (insulation was already compliant) from the start of the tenancy. This period ended around the same time the landlord accepted the tenants surrender of the tenancy. Secondly, the landlord intended to demolish the premises. As pointed out to the landlord at the hearing, if the landlord was to rely on that reason as being an exception to the HHS standards he should have applied for the relevant resource or building consent before the healthy homes compliance date fell due.
- Given the timings, I do not find the landlord has failed to meet the HHS standards within the statutory timeframe. The report highlighted issues which should have been addressed prior regardless and these are considered under the landlord’s failure to maintain below. Bond
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986 (“RTA”).
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord failed to lodge the bond. That is not disputed by the landlord. He said it was an oversight and timely lodging of any tenant bond is his usual practice. There have not been any recorded prior failings by this landlord to lodge the bond. I find they have committed an unlawful act.
- As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.
- Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
- 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) RTA
- Having considered the circumstances, intent, and impact, I have determined some exemplary damages should be made. It is unacceptable for the bond to remain with the landlord such as here and I award $200.00 as exemplary damages. This is at the lower end.
- As the bond is still with the landlord, that is ordered returned to the tenants immediately. Failure to maintain
- It is well settled that, the landlord’s obligation under s 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be.
- Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
- The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. There was also concerns regarding building materials left outside, as well as a poorly maintained brick area that was a trip hazard.
- I will not recount all of the issues raised but I consider the landlord acknowledgement of some failures, and the offer of a rent rebate of $100.00 per week is a fair compensation to the tenants for the condition of the premises. This is a straight-line calculation for compensation but an alternate calculation, weighted for the time and duration of specific tenant impacts returns much the same quantum. The tenants sought specific compensation for high electricity and heating costs. I decline any specific order, determining the overall compensation amount ordered here is part contribution towards any such costs. I do note that for the arriving family from overseas, a winter in Blenheim will have presented environmental challenges regardless. Cleanliness
- The tenants’ settlement into Blenheim was managed by Red Cross. They inspected the premises prior and raised issues of concern with the landlord. Some matters were attended to, but I accept, based on the evidence presented, that further cleaning was required. That some of this was done by Red Cross volunteers does not negate the case for compensation. I consider $400.00 payment for additional cleaning should be awarded. Outside
- The premises was part of a large section that had been sub-divided at the back and a new house built there. There was reports of some confusion regarding the correct numbering convention for the two houses at the address, but I do not find the landlord responsible for that.
- I do accept that the landlord failed to ensure the outside area was free of surplus building materials or such. The tenants also provided photos of a brick paved area in the backyard that was in poor condition and may reasonably be considered a trip hazard.
- Having further reviewed the photos and considered the submissions I make an order for $400.00 compensation for the landlord’s failure to ensure the outside area was free of hazards. Mould
- The tenants’ claimed mould was a problem. The landlord acknowledged some visible mould that he cleaned before the tenancy.
- In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Adjudicator found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”.
- Having considered the respective submissions, I do not find any specific orders pertaining to mould should be made. Cost incurred by the Red Cross
- On behalf of the tenants, the Red Cross commissioned an HHS report. The cost of that was sought as compensation. I decline that cost as it was commissioned before the HHS compliance timeframe had lapsed. Further, the landlord should have provided the information if so requested per s 45(1AC) Residential Tenancies Act 1986. Other matters
- It is difficult to manage a family moving through the resettlement process. By its very nature the tenancy agreement is typically entered into on behalf of the family while they are undertaking resettlement via the Auckland facility.
- In this instance, it is accepted the landlord was advised the incoming family was intended to be one with teenage children. He stated the previous tenants had a similar family structure and found the premises appropriate. The later decision to switch families so that younger children would now be resident should have triggered a response from the landlord, when so advised. He acknowledged this. If he had cautioned regarding such a placement he would have been placed in a better position regarding some claims.
- The landlord’s acceptance of the fixed-term break at not cost to the tenant is acknowledged. While not required to make any determination on any break, I do not consider an application by the tenants to break the term would not have been automatically accepted.
- The Red Cross appears to have done a commendable job in the resettling and immediate assistance to the tenants, through to managing this application. I accept a number of the negative impacts or experiences as recounted by the tenants but I do consideration some of those experiences may have been anticipated as part of the overall challenge of resettling into a new town in a colder part of the country, during the coldest part of the year. Application filing fee
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
- Section 95A RTA states regarding suppression orders that 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.
- The tenant requested suppression in its application. As it has been substantially successful, suppression is ordered.