What was Tenancy Tribunal case 4699430 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 4699430?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4699430?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4699430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9916451-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4699430 about?

This case concerned a mould & damp dispute.

How much money was awarded in case 4699430?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4699430?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4699430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9916451-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4699430 — Mould & damp

Reasons

Both parties attended the hearing.
The Tenant has sought breach of Healthy Home Standards, exemplary damages and refund of the bond. Boarding house
The Tenant claimed this was not a boarding house tenancy because there were four bedrooms and less than six occupants at the time he stayed there.
The Landlord deposed this was a boarding house tenancy. There were five bedrooms and at the time the Tenant resided there, there were at least six other Tenants residing at the property however some may have terminated their tenancy midway. Some of the other Tenants were couples occupying the one bedroom. The Landlord had always intended for this to be a boarding house.
Section 66B of the Residential Tenancies Act 1986 (‘RTA’) states: A boarding house means residential premises— (a) Containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants A boarding house tenancy means a residential tenancy in a boarding house— (a)that is intended to, or that does in fact, last for 28 days or more; and (b)under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house
Upon perusal of the Tenancy Agreement, there is reference to house rules, the lease is for one bedroom, assigned house chores, a statement that the fixed term tenancy was longer than 28 days, reference to common areas and rules that visitors were not allowed to stay. The clauses are strongly persuasive that this is a boarding house. The parties also confirmed that the kitchen, lounge, bathroom and hallway were all common areas in this house.
In considering the evidence, I find on the balance of probabilities that this is a boarding house tenancy because of the terms of the Tenancy Agreement which are highly characteristic of a boarding house arrangement and set-up of the house with its communal areas and number of tenants. Background
This tenancy started on 30 January 2023 and ended on 30 July 2023. The house was built in 2016. Breach of Healthy Home Standards
The Tenant claimed the Landlord was in breach of Healthy Home standards because there was a lack of ventilation in the upstairs bathroom. The Tenant submitted the fan was not functional from the start to the end of the tenancy and the switches for it on the wall were covered up with tape. Photographs were provided of the lighting in the bathroom which appeared as if there were no light bulbs in there and a wall switch which had light switches covered with tape so that only two switches were accessible.
The Tenant did not notify the Landlord that the fan was not working during the tenancy. The bathroom was therefore damp and the Tenant would open the window for ventilation. The Tenant also submitted that they did not receive a Healthy Homes assessment from the Landlord.
The Landlord submitted there was a functional fan behind the heat lamp which is high in the ceiling. The Tenant may have mistaken this as not working because it was very quiet or the Tenant did not press the button to work. If the fan did not work, the Tenant never notified the Landlord so the Landlord was perplexed as to why he was raising this after the end of the tenancy.
The Landlord also submitted there was a big window in the bathroom and a compliance inspector who assessed the property a few years prior advised him that the mechanical ventilation or the natural ventilation from the window was sufficient.
The Landlord submitted he had a Healthy Homes Assessment conducted approximately two years ago. There was no obligation for him to provide this to the Tenant. The law
Section 66(I) of RTA states: The Landlord of a Boarding house must at all times: (bb) comply with healthy home standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Compliance dates for the HHS vary depending on the tenancy, but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
In considering the evidence, the Tenant maintained the fan did not work which is contrary to what the Landlord submitted. There was no evidence from the Tenant however to prove that it was not working such as a report from an electrician or a Healthy Homes Assessment. Furthermore, if the fan was not working, this does not equate to a breach of Healthy Homes standards. It can potentially mean a failure of the Landlord to maintain the property in a reasonable state of repair if the Tenant notified the Landlord of this issue. The Tenant did not do this either.
The claim is therefore dismissed. Key money
Chen Yi claims the landlord has requested ‘key money’.
A landlord cannot, without the Tribunal’s consent, require a tenant to pay any money other than rent or bond for the grant, renewal, variation or assignment of a tenancy agreement. See section 17(1) Residential Tenancies Act 1986.
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 17(3) and Schedule 1A Residential Tenancies Act 1986.
The Tenant claimed the Landlord required the payment of key money of $100.00 at the start of the tenancy.
The Landlord submitted the key money was pre-authorised funds for the Landlord to look assist in the event of an emergency with access to the property. The Tenant was asked if he was agreeable to pay the key money on 19 January 2023 prior to the Tenant moving in. The Tenant agreed in writing to this condition.
In considering the evidence, the definition of ‘key money’ pursuant to the RTA is not in respect of money paid for key issues. It is in reference to money requested from a Tenant by the Landlord so that the Landlord grants, continues, extends, varies, renews or allows the Tenant to assigns or sublease. It would be for example, an extra payment from the Tenant to ensure the Landlord grants that particular Tenant the tenancy or to ensure the Landlord extends their lease. It is not in reference to services provided by the Landlord for key issues or gaining entry into the property.
The claim by the Tenant is dismissed. Bond lodgement
Chen Yi claims the landlord has not lodged the bond with the Bond Centre within the required time. The tenant paid the bond on 23 January 2023 to the Landlord and it was not lodged until
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.
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 submitted he lodged the bond on time and it was a miscalculation from the Tenant. The Tenant started his tenancy from 8.00pm on 30 January 2023 so the 23 working days commenced from when the tenancy started. The Landlord would have needed to submit by 2 March 2023. The confirmation email on 2 March 2023 was evidence the landlord lodged the bond within the 23 days. The Tenant may have paid this prior to the tenancy starting however the landlord understood the 23 days does not commence until the tenancy starts. This is because Tenants may change their mind and not proceed with the tenancy.
The Tenant submits that the Landlord acted intentionally in paying the bond late and that he was told that his tenancy was confirmed prior to the move in date. The Landlord submitted that he told the Tenant that he did not need to pay the bond until one day prior to the tenancy commencing but the Tenant paid earlier. He submitted that his usual practice is to lodge the bond well within the 23 days. The Landlords intention was always to comply with the law and it was his understanding that the 23 working days commences on the date the tenancy started because Tenants can change their mind with tenancies. The Tenant did not convey how this late payment affected him. It is in the public interest that Landlords lodge the bond payment within the timeframe so that Tenants have reassurance and confidence that an independent body has stewardship of their funds in a timely manner.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
I find the Landlord has committed an unlawful act because the RTA specifically states payment is to be made 23 days from the date the payment is made and not 23 days from when the tenancy commences.
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.
In considering the evidence, I find on the balance of probabilities that the Landlord did not intentionally act unlawfully in lodging the bond late. It was a misunderstanding of his obligation of when the 23 days commenced. If there was an intention to lodge late, one would have expected the bond to be lodged months later however he lodged on 2 March 2023. The deadline was 23 February 2023 which is five working days late. This late lodgement of the bond would not have affected the Tenant in a substantial way.
The claim is dismissed. Harassment
Chen Yi claims the landlord has breached their quiet enjoyment to the point of harassment by installing security cameras in the communal areas of the house.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 66G(1) 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 $3000.00. See section 66G(4) and Schedule 1A RTA.
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 Tenant submitted the landlord installed a security camera above the stairway in the house prior to the Tenant moving in. This captured movement in the stairway, hallway and inside the Tenants bedroom when he opened his door. Because of the security camera, the Tenant was unable to leave his door open during the summer to allow the breeze to reach his room. He felt there was no privacy every time he opened his door and he was aware that Tenants were receiving fines for breaches that were caught seen through the camera. He provided text message evidence of the Landlord advising all of the Tenants about an overnight visitor.
The Landlord submitted this security camera was installed prior to the Tenant moving in at the advice of police and the Tenant was aware of the cameras before moving in. The camera was originally installed to capture previous Tenants unlawfully re-entering the property. The Landlord submitted it remained because the current Tenants liked how it as maintained safety for them. The Landlord deposed it encouraged good behaviour by the Tenants. It was not intended to be a means of recording the Tenants breaches. There was no evidence that the current Tenants agreed to the camera. The Landlord deposed he did send a text message to all the Tenants about the overnight visitor so that they were aware of the extra person staying at the property.
I find the Landlord has not committed an unlawful act by placing the camera inside the common areas of the house as the breach of quiet enjoyment did not amount to harassment. The Tenant did not stipulate that he felt distressed, troubled, worried or any feelings to this effect by the security camera. There was no pattern of behaviour directly targeted at the Tenant to breach his quiet enjoyment. The Tenant also submitted in his evidence that the camera did not affect him personally but was being used to issue fines. If the Tenant had found this to be harassment during the tenancy, he certainly did not notify the Landlord of this.
I accept the evidence that the Tenant was aware of this camera before he moved in and the camera was installed for security and safety purposes, not to capture Tenants breaching the tenancy so they could issue fines. The Landlord submitted that he placed the cameras in common areas to ensure there was good behaviour and safe conditions for the Tenants.
For these reasons, the claim is dismissed. Refund of the bond
The tenant has applied for refund of their bond following the end of the tenancy The Tenant claimed the Landlord withheld $150.00 for three infringements which were each $50.00. The breaches were because a computer chair was missing at the end of the tenancy, the Tenant kept his bike in the garage and the Tenant cleaned his car in the driveway. The Tenant admitted to the bike and cleaning the car in the driveway however submitted that he left the computer chair in the hallway at the start of the tenancy. He had his own chair he wanted to use however he did not notify the Landlord that he would be moving the computer chair out.
At the hearing the landlord made a claim against the bond. However, the landlord did not file an application with Tenancy Services. The Landlord submitted he only claimed $50.00 for all three breaches. He deposed the chair supplied to the Tenant at the start of the tenancy was missing at the end of the tenancy. The Landlord was never informed by the Tenant that he did not want it and that he moved it to the hallway.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.
As the Landlord has been substantially successful, name suppression is granted to the Landlord. The Tenant did not request name suppression.

Tenancy Tribunal case 4699430 — Mould & damp

Tenancy Tribunal case 4699430 — Mould & damp

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions