What was the outcome of Tenancy Tribunal case 4697989?

The tribunal order states: John Bunnik must pay Hayden Lee Glenie and Molly Dawkins $95.44

How much money was awarded in case 4697989?

Compensation: Failing To Maintain: $75.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4697989?

The dispute type was not classified.

Where can I read the official tribunal order for case 4697989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11513764-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4697989?

The tribunal order states: John Bunnik must pay Hayden Lee Glenie and Molly Dawkins $95.44

How much money was awarded in case 4697989?

Compensation: Failing To Maintain: $75.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4697989?

The dispute type was not classified.

Where can I read the official tribunal order for case 4697989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11513764-Tenancy_Tribunal_Order.pdf.

328 Jary Road, Ohaupo, RD 1, Ohaupo 3881 Tenancy Tribunal Case 4697989 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4697989 — net $95.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failing to maintain	$75.00	Failing to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$95.44
Total payable by Landlord to Tenant	$95.44

The tenants were represented by Mr Glenie’s mother, Mrs Smith. The landlord was represented by legal counsel, Ms Gray from Norris Ward McKinnon

This matter has set heard over a number of hearings. Hearings were held on: • 6 December 2023 at which both tenants and Mrs Smith attended, but the landlord did not attend; • 20 November 2024 at which Mr Glenie and Mrs Smith attended, but Ms Dawkins did not attend. Mr Bunnik and Ms Gray also attended.

The matter was prolonged as three scheduled hearings were adjourned: to enable the tenants to arrange legal counsel; as the landlord was overseas and as one of the tenants was having a procedure at hospital.

Both parties have filed a claim.

The tenants’ claim: a) exemplary damages and compensation as the landlord: i. failed to maintain the premises in a reasonable state of repair (section 45(1)(b) of the Residential Tenancies Act 1986 (RTA)) and ii. interfered with the supply of water to the property (section 45(2)) b) someone other than the landlord carried out tenancy inspections

The landlord has applied for compensation for a broken ranch slider door and damage to a wall.

Both parties seek reimbursement of the filing fee following the end of the tenancy.

The tenancy, which was a service tenancy, commenced on 29 October 2022 and ended on 19 September 2023. Mr Glenie was working on Mr Bunnik’s dairy farm; the tenancy premises was situated on the farm. The tenants moved out of the premises following Mr Glenie’s resignation. The tenant’s claim Has the landlord failed to maintain the premises and/or interfered with the supply of water?

At the centre of the tenants’ claim is an issue they experienced with the supply of water to the premises from 11 September 2023, 9 days before the tenancy ended.

On 11 September the tenants arrived home in the evening to find they had low water pressure. They texted Mr Bunnik that night: “there is very little water pressure at the home. This is a health and safety issue for our family. Could you please organise for this to be fixed as soon as possible as per the tenancy agreement.”

The next day there was no water coming to the house. The tenant believed he forwarded a letter to the landlord on 12 September telling him they had no water. There was no water at the property before the tenants vacated.

The tenants’ evidence is that the lack of water significantly impacted their ability to live as they had to buy water to drink, cook with, flush the toilet and feed their animals. They travelled to family in Huntly to shower and said they could not clean the house at the end of the tenancy to the same standard as they would have had they had water. The tenants seek compensation ($500) for purchasing water and travelling costs to supermarkets and to family in Huntly so they could shower.

The tenants’ view is that the landlord should have checked the pump that serviced the tenancy premises after he was advised there was low water pressure and should have arranged for pump specialists to look at the pump once the water supply to the house stopped.

The tenants were aware that water was still being provided to the troughs on the farm during the time they had no access to water. The tenants understood the water source for the troughs was from the same bore that fed water to the tenancy premises. For that reason they consider the landlord has interfered with the supply of water to the house. Exemplary damages are claimed for the landlord’s failure to repair the water supply/pump in reasonable time and for interfering with the water supply.

The landlord acknowledged that he did not take any action after receiving the text advising of little water pressure. He said it was a busy time on the farm and he believed the house must be supplied with water as it is below the water supply/bore and would be fed by gravity even if there was an issue with the pump. He thought the tenant could have, and should have, checked the pump by the house to see what the problem was.

The landlord denies receiving any communication from the tenants that they had no water before the tenancy ended, and that he only learned that was the case when the tenants filed their claim around a week after the tenancy ended. Since then he has had pump specialists investigate the pump and it has been replaced as it had failed.

The tenants have provided a copy of the letter they say was sent to the landlord on 12 September advising there was no water but have not provided evidence that it was emailed to the landlord. That leads me to the conclusion that while the tenants thought they had told the landlord in fact they had not.

However the landlord was told the water pressure was very low, and in messaging the landlord the tenants have raised that as a health and safety issue. In my view the landlord needed to investigate the cause of the low water pressure in reasonable time after receiving this message. Access to water is critical.

The landlord’s reasons for not taking any action to check if there was a problem with the water pressure and, if there was, what the cause was, do not reduce his obligation under section 45 to maintain the premises in a reasonable state of repair. That is, how busy a landlord may be does not impact on this obligation, and it is not appropriate for a landlord to expect a tenant to check the functioning of the system supplying water to the tenancy premises. Here that is particularly the case given that the pump for the house is not within the boundary of the tenancy premises and as the tenant was no longer an employee he had no right to go onto the farm.

I have considered the landlord’s defence that the house should have received water as it was gravity fed. However that was clearly was not the case. I find the failure of the pump that serviced the tenancy premises meant no water was supplied to that property from 12 September 2023 until the end of the tenancy. Accordingly I find the landlord failed to maintain the premises in a reasonable state of repair in not investigating the issues with the pump after he was told there was very little water pressure.

The tenants have not established that the landlord interfered with the supply of water. From the evidence I am satisfied that the paddock troughs and cowshed were supplied by a different water line from the tenancy premises. Both supplies came from the same bore, but there were two lines, each having its own pump. This part of the claim is dismissed.

Given my findings above I find the landlord his breached his duty to maintain the premises under section 45.

Are the tenants entitled to compensation and/or exemplary damages?

The tenants have claimed compensation and exemplary damages for breach os section 45(1)(b). Compensation:

The Tribunal can award compensation where a party has suffered loss due to a breach of the tenancy agreement or any provision in the RTA. It is a well- accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in but for the breach.

Section 49, RTA requires that where a party has breached any of the provisions of an agreement or the RTA, the other party must take all reasonable steps to limit their loss arising from the breach. This is also referred to as mitigation of loss.

In general the onus, or burden, of proving a particular claim rests with the party who is making the claim which in this case the tenants. The standard of proof, or level of evidence, required is “on the balance of probabilities”. In other words, the party making the claim must establish with evidence that what is claimed is proven to be “more probable than not” or “more likely than not”, including the amount they are claiming.

The focus for compensation under this part of the tenants’ claim is the breach by the landlord in not taking any action to investigate the low water pressure. The tenants did not mitigate their loss as they did not inform the landlord that the water supply to the house had ceased. That duty lies with them and failure to tell the landlord in my view is significant and as a result I am not prepared to consider compensation for losses incurred for the tenants having no water until the end of the tenancy.

The tenants have not provided evidence establishing when and how much water was purchased. They have travelled to Huntly as they preferred to shower there rather than at relations closer in Hillcrest. This is another failure to mitigate their loss.

Having considered all aspects of the breach by the landlord I find the tenants are entitled to $75.00 compensation for the inconvenience caused to them by the landlord failing to take any action. This amount in my view would reasonably cover the cost of a short-term purchase of water, reasonable travel expenses and inconvenience associated with the low water pressure. Exemplary Damages:

When a provision of the RTA is breached which is stated to be an unlawful act then the Tribunal can consider awarding exemplary damages. Breach by a landlord of section 45(1)(b) is stated to be 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 1 .

Exemplary damages are not compensatory in nature, but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences.

I decline to make an award for exemplary damages as I find it would be unjust to do so. I am persuaded the landlord has intentionally not investigated the low water pressure, particularly due to the landlord’s expectation that the tenant would inspect the pump. However I find the effect of the tenants failing to further communicate with the tenant that the water supply failed completely had a significant effect on the situation. It is reasonable given the landlord received no further communication that he thought the tenants continued to have water, whether that was at regular of a reduced pressure. It is in the public interest that landlord’s ensure water supply to a property is available and working as it should. However equally important is the need for a tenant inform the landlord of any need for repairs 2 , and very much the case where the water supply has failed completely. 1 Section 109 and Schedule 1A, RTA 2 Section 40(1)(d)

Is the landlord required to personally carry out tenancy inspections ?

The tenants raised their concern that someone other than the landlord carried out inspections of the property and when asked did not identify who she was.

Neither the RTA nor the tenancy agreement require a landlord personally to carry out inspections of the premises. A landlord is able to arrange for their agent to do this work. Therefore as long as the tenant is given the notice required under section 48 of an inspection 3 the landlord or their agent has the right to enter and carry out the inspection.

It is unusual for an agent of the landlord not to identify themselves. Had the tenants had any concerns that the person was not an agent of the landlord, it would have been reasonable for them to have denied entry on that basis. In allowing the person to enter the property the tenants are deemed to have consented to the entry.

I am satisfied there has not been a breach of the tenancy agreement or the provisions of the RTA. This part of the claim is dismissed. The landlord’s claim

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This 3 48 hours’ notice is required for an inspection occurring between 8am and 7pm. applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The landlord claims the following damage was caused during the tenancy: Broken glass in the dining room ranch slider

The landlord said a glass panel in the ranch slider was not broken when an inspection was carried out on 8 September. At the final inspection the fixed glass panel in the dining room ranch slider was broken. The woman who carried out the final inspection recorded on the final inspection/condition report “Sunday after 4 until approx. 6pm Rock thrown through R/Slider Dining Window “. The landlord said person doing the inspection told him that there was glass outside on the deck. The landlord believes the tenant caused the damage by throwing something from inside the premises out onto the deck.

The tenants deny they caused the damage. Their evidence is that on the Sunday before they moved out they returned from taking away a load of furniture and found that a rock had been thrown through the glass into the premises. The tenants said there was glass inside and outside, all od which they cleared away and then placed cardboard over the hole.

The photograph provided was taken at the final inspection and does not show any broken glass on the inside or outside of the house. The tenants did not advise the landlord of the damage. They say they did not see the point as the landlord had not responded to the letter they believed they had sent stating they had no water.

While I find the landlord has proven the damage occurred during the tenancy I am not satisfied that the landlord has met the onus of proof required to establish that the tenants, or anyone at the premises with their permission, caused the damage to the ranch slider. For that reason the claim is dismissed. Damage to hall wall from door handle.

The wall in the hallway was damaged where the door handle has punctured the wall. There is a doorstop on the door, meaning the hole could only be caused by a significant push or bang to the door. The landlord claims this was done during the tenancy.

The tenants deny the hole was caused during the tenancy.

I am not persuaded that the landlord has sufficiently proven the hole was in the wall at the end of the tenancy for the following reasons: a) neither the inspection report done on 8 September or the final inspection report done on 19 September records the damage. b) the damage was not noticed until the new employee/tenant brought it to the landlord’s notice in February 2024 some four months later.

Therefore this part of the landlord’s claim is also dismissed. Other orders

The tenant’s have been sufficiently successful in their claim that I award reimbursement of the filing fee.

The landlord’s have not been successful and reimbursement of the filing fee is not awarded.

Neither party has requested suppression of their names.

Reasons

Claims and awards in Tenancy Tribunal application 4697989 — net $95.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failing to maintain	$75.00	Failing to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$95.44
Total payable by Landlord to Tenant	$95.44