How much money was awarded in case 4707851?

Compensation: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $600.00 awarded to tenant

What type of tenancy dispute was case 4707851?

The primary dispute was Property damage. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4707851?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10281605-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4707851?

Compensation: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $600.00 awarded to tenant

What type of tenancy dispute was case 4707851?

The primary dispute was Property damage. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4707851?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10281605-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4707851 — Property damage

Q: What was Tenancy Tribunal case 4707851 about?

The tribunal order states: The landlord must carry out the following work to the premises, which must be

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4707851 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – repair/maintenance	$600.00	Compensation – repair/maintenance
Compensation - HHS	$300.00	Compensation - HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

The landlord must carry out the following work to the premises, which must be completed by 17 May 2024: a. Arrange a qualified plumber to repair the leaking shower b. Arrange for the repair of the hallway floorboard

The landlord must take immediate steps to contact the neighbour and make arrangements for the repair of the fence by 17 May 2024. The fence repair work is to be carried out as soon as practicable and without undue delay.

[The landlord/s] must pay [The tenant/s] $920.44 immediately, calculated as shown in the table below:

All other claims are dismissed.

Reasons

Background

Both parties attended the hearing. [The landlord/s representative] appeared for the landlord.

This is a periodic tenancy which began on 18 February 2022. The rent is $750.00 per week and a bond of $3,000.00 was paid.

There are three applications to be determined: • 4667618 – landlord application for rent arrears and termination • 4704834 – tenant application for a work order, compensation and exemplary damages arising from breaches by the landlord in relation to the following: i. Failure to maintain the shower, floor, fence, mould. ii. Failure to comply with the Healthy Homes Standards (HHS) iii. Breach of quiet enjoyment iv. Failure to lodge the bond. • 4707851: landlord application for: i. rent arrears ii. water rates iii. compensation for damage to the bathroom, hole in the floor and fraudulent statement by the tenant regarding HHS iv. exemplary damages for remaining in the property after the tenancy was terminated. General principles

In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish with evidence that their claim is “more likely than not.”

The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Landlord application: 4667618

The landlord applied for rent arrears and termination of the tenancy. This application was made on the basis that a 14 day notice was issued on 12 August 2023 for rent arrears and the notice to remedy had not been complied with by the tenant.

The parties attended mediation and a mediated order was completed and sealed on 11 September 2023, setting out the rent arrears and an agreement for repayment. The tenant applied for a re-hearing. This was granted on 16 November 2023 by Adjudicator Setefano, who noted that the landlord had conceded that the amount of rent arrears stated as owing in the mediated order was incorrect. A stay of proceedings was also issued.

The tenant filed a cross application on 5 October 2023 (application 4704834) and the landlord filed another application on 10 October 2023.

A case conference was convened by Adjudicator Cheeseman on 14 November 2023. The order following the case conference set out the issues for determination and a timetable for the filing of evidence.

The parties attended a hearing before Adjudicator Cheeseman on 19 December 2023. All three applications were to be considered at this hearing. A new stay of proceedings was issued for application 4667618, which was to continue until the applications were determined. The applications were referred to mediation. They were subsequently set for hearing.

Should the tenancy be terminated?

In terms of the current application (4667618), at the hearing, the landlord’s evidence is that the tenant was in arrears, between 11 August and 5 September 2023, and the amount due was $2,678.57. This was more than 21 days in arrears. The landlord accepts that the tenant is not in arrears at the time of the hearing. Furthermore, the water charges have been paid.

Under section 56 of the Residential Tenancies Act (the RTA), the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.

In this case, as explained to the parties, the landlord’s 14 day notice dated 12 August 2023 was defective, since it incorrectly recorded that the tenant was in arrears by $750.00. The landlord has accepted that this was the incorrect figure. Furthermore, at the date of the hearing, the tenant was not in arrears, and so the grounds for termination under sections 55 and 56(2) of the RTA have not been established. Accordingly, the landlord’s application is dismissed. Tenant application: 4704834

As noted above, the tenant has applied for a work order, compensation and exemplary damages arising from breaches by the landlord in relation to the following: • Failure to maintain the shower, floor, fence, mould. • Failure to comply with the Healthy Homes Standards • Breach of quiet enjoyment • Failure to lodge the bond Legal framework

The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with the healthy homes standards, and any relevant enactment in relation to buildings, health, and safety.

The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ... the obligation of the landlord, 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, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be. 4 Work order

A work order is sought to repair the shower, and the hallway floorboard. The tenant’s evidence is that there is a leak under the shower and there is a hole in 1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d) 4 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085 the shower wall. The water has damaged the panels and floor. This was discovered in August 2023, and the landlord was informed immediately. She states the water leak is causing mould. She had slipped and fallen twice. The tenant issued 14 day notices to the landlord, on 1 October and 23 November 2023. Photographic evidence of the shower has been provided. The hallway floorboard also needed to be repaired. The tenant has also produced a Healthy Homes Assessment report completed by Habitat for Humanity dated 16 November 2022.

In response the landlord states the property, a 1960’s home, was purchased on 14 February 2022 and the current tenant was the first tenant. The bathroom was renovated. The landlord refers to evidence from the builder who felt the damage was intentional damage, from hammering into the walls, rather than damage due to water.

The tenant, in reply, denies that she would have damaged the shower in this way.

Having heard the evidence and submissions of both parties, and taking into account the photographic and documentary evidence filed in support, I find it more likely that the damage to the shower and hallway floorboard was not caused by the tenant. There is sufficient evidence to establish that the landlord ought to carry out work to address the following issues: • Leaking shower, causing mould • Hole in the hallway floorboard

The landlord agrees to address these two issues above. The shower repairs are to be completed by a qualified plumber. This work, and the repair of the floorboard, is to be completed by 17 May 2024.

In terms of the fence, the tenant seeks the repair of the back fence, which fell down following a storm. The landlord has explained that there have been difficulties contacting the neighbour. It seems that initially the landlord believed the tenant was responsible for this damage. However, it seems more likely that the fence was damaged following a storm. Tenants are not responsible for repairs or damage from natural events, such as storms. Tenants are also not responsible for damage that arises from fair wear and tear (or damage from ordinary use).

As set out above, the landlord is to take immediate steps to contact the neighbour and arrange for the repair of the fence as soon as practicable and without undue delay.

The landlord also notes the tenant had removed the aluminium fence on the side. The tenant has explained that these were taken off and left to one side by the lawn mowing contractor. She agrees to put them back in place. Compensation for repair issues

In the present case the tenant must be able to prove, on the balance of probabilities, that the shower and hallway floor was not in a reasonable state of repair, and that the landlord had notice of the problem and failed to repair within a reasonable time. Taking into account the evidence and submissions of both parties, I find that the tenant has established her claim.

In terms of the problems with the shower, while I note that a builder attended, the landlord has not shown that the issue has been properly addressed. A plumber has not been called to identify the problem and carry out the necessary repairs. The landlord has been aware of the need to repair the fence, but has not made much progress in attending to it. Accordingly, the tenant is to be compensated. Taking into account the nature and duration of the issues, the resulting effect for the tenant, the amount of $600.00 is awarded to the tenant. Exemplary damages for repair issues

The tenant also claims exemplary damages. For this to be awarded, the test for exemplary damages must be met. This is set out in section 109(3) of the RTA, and requires, as a precondition, that the person against whom the order is sought committed the unlawful act intentionally. An intentional act is a deliberate act, not a negligent or careless oversight, nor does it catch mere incompetence. In this case, I find that the required intent for exemplary damages is not met, so there is no separate award for exemplary damages. Healthy Homes Standards

The tenant claims breaches by the landlord under the Healthy Homes Standards (HHS). A Healthy Homes Assessment completed by Habitat for Humanity on 16 November 2022 has been provided. The tenant states this report was not given to the landlord when it was completed. She confirms there is a heat pump and curtains in the property. However, she is concerned about the insulation, the ground moisture barrier, and feels the premises is draughty. Insulation

Section 45(1)(bb) of the RTA requires the landlord to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R- value of at least 0.9. The insulation must be in reasonable condition.

Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.

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 (1)(A) and Schedule 1A of the RTA.

The Habitat for Humanity report indicates that the ceiling and underfloor insulation meets the HHS, but the ground moisture barrier did not, and the comment by Mr Anderson, the assessor, is that the underfloor insulation needed replacing.

The landlord disputes these findings and states the house is fully insulated. He relies on the following evidence: Tenancy Services letter confirming that the property is compliant, Insulation Compliance Certificate from [the insulation company] dated 7 May 2022, and a more recent HHS report completed by [the building reports company] , dated 17 November 2023. The landlord notes [the building reports company] report shows there was underfloor insulation, but some of it had been removed. This has now been replaced, at the landlord’s cost ($350.00, as shown in the [the insulation company] quotation dated 18 March 2024).

In view of the landlord’s evidence, it seems the premises was compliant at the start of the tenancy, but some of this insulation came away, and there was a need for this to be replaced, which the landlord has attended to. Overall, in terms of the insulation obligation, I find the landlord has met the requirements and this claim is dismissed. Draughts

[The tenant/s] claims the landlord has breached their obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.

Compliance dates for the HHS vary depending on the tenancy: • For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. • All boarding houses must comply by 1 July 2021. • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.

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. The HHS does provide exemptions in specific circumstances. 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).

In this case the tenancy began on 18 February 2022, so the premises must comply with the HHS within 90 days of the commencement of the tenancy, The report from [the building reports company] shows the property complies in terms of the heating and ventilation requirements. However, there are other aspects of the HHS that have not been complied with, including in relation to draught stopping. The report states that there are failures with the flooring, in four areas, located in the corridor, bathroom, bedroom 3 and the laundry. It was recommended that these areas be sealed.

While the landlord states there were no gaps or holes at the start of the tenancy, he has not produced any persuasive evidence in support. The letter from Tenancy Services is limited to showing that in May 2022, the premises did comply in relation to the insulation and smoke alarm requirements. But there is no confirmation of other areas of compliance. The Habitat for Humanity report, completed in November 2022, indicates there were draughts in the bedrooms and front door, although the box is ticked “yes” in relation to the draught stopping standards. Therefore, the evidence regarding the level of compliance in relation to the draught stopping standard at the start of the tenancy is unclear.

I do not accept the landlord’s claim that the tenant is likely to have deliberately made holes or created the gaps that are now the cause of the draughts. In this case, I find [the building reports company] report shows the premises does not currently comply with the HHS in terms of draught stopping. Accordingly, the tenant is to be compensated for this breach.

Taking into account the nature of the breach, the duration and effect on the tenant, the amount of $300.00 is awarded in compensation. There is no award for exemplary damages, as the required intent, being the pre-condition for award of exemplary damages, is absent. Failure to lodge the bond

The tenant claimed the landlord has not lodged the bond with the Bond Centre.

The RTA requires a landlord to send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages.

In this case, the landlord has produced evidence to show that the bond was lodged with the Bond Centre within the required timeframe. The letter from the Bond Centre dated 11 March 2022 confirms payment on 3 March 2022. Therefore, this claim is dismissed. Breach of quiet enjoyment

The tenant claims the landlord has breached her quiet enjoyment, listing in her application her concerns about the landlord’s communication. At the hearing her evidence was that she has found it stressful dealing with the landlord. She has a physical disability and was on ACC and is receiving counselling, funded by ACC.

In response the landlord provided oral evidence about the stress he has been under, speaking about the effect on himself and his family dealing with the tenant about unpaid rent. He noted he had a mortgage and relied on the rent for repayments.

Section 38(1) of the RTA states that the tenant is entitled to have “quiet enjoyment” of the premises without interruption by the landlord or anyone acting on the landlord’s behalf. This provision imposes a limited duty on the landlord not to do anything to interrupt the tenant’s use of the premises. 5 Section 38(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.

The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 6 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.

Where this obligation has been breached in circumstances that amount to harassment, this is an unlawful act for which exemplary damages may be awarded. Harassment means "to trouble, worry or distress" or "to wear out, tire, 5 ‘Residential Tenancies: The Law and Practice’ 4 th edition, D. Grinlinton (2012) 6 Residential Tenancy Law in New Zealand S. Benson (2018) or exhaust" and "indicates a particular pattern of behaviour directed towards another person." 7

In this case, both parties have exchanged communication, which has tested the other’s emotional wellbeing. I acknowledge the effect on the tenant and accept that she has felt upset by the tone of the landlord’s communication, some of which I agree was unhelpful. However, overall, I am not able to find, on the evidence provided, that there has been a breach of quiet enjoyment. Furthermore, I do not find the pattern of behaviour directed towards her reaches the level of harassment. Accordingly, this claim is dismissed. Landlord application: 4707851 Rent arrears and water rates

As the tenant is not in rent arrears at the date of the hearing, and does not owe any water charges, this claim is dismissed.

Is the tenant responsible for the damage to the premises?

The landlord claims compensation for damage to the bathroom and the hole in the floor. The landlord also claims compensation for a fraudulent statement by the tenant regarding the HHS.

In terms of the claim for damage, 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 of the RTA.

Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies.

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) of the 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 7 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. 49B(3)(b) of the 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) of the RTA.

The landlord is insured for tenant damage and the insurance excess noted in the insurance advice is $550.00. The rent for this premises is $750.00 per week.

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 applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) of the 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 states that the walls of the bathroom were damaged, the drainpipe is broken, and the insulation was damaged. Photographic evidence has been produced and a quotation for renovation of the bathroom at the cost of $12,870.00. The landlord has not approached the insurer. The landlord notes the tenant has kept a dog on the premises.

The tenant accepts that she is the owner of a dog, and on being made aware she was not allowed to keep a dog on the premises, has not done anything to remove the dog. She agrees to remove any carpet stains, but denies there is dog urine on the carpet.

In this case, as noted above, having had regard to the evidence and submissions of both parties, I find the damage in the bathroom and the hole in the hallway floor were more likely to be the result of fair wear and tear, rather than deliberate or careless damage by the tenant. As the landlord has not proved, with sufficient evidence, that the tenant is responsible for this damage, this claim is dismissed.

At the hearing the landlord indicated that compensation based on alleged fraud with reference to the HHS was no longer sought. Exemplary damages are also no longer sought.

In terms of the landlord’s claim that the tenant failed to vacate the premises on termination of the tenancy, since the tenancy has not ended, this claim is also dismissed. Filing fee

As the tenant has been the most successful with her claims, the landlord is to pay the tenant’s filing fee. Name suppression

An application for suppression has been made in this case by both parties, and the Tribunal, having had regard to the interests of the parties and to the public interest, orders suppression of the Tenant/Landlord name and identifying details.

Order

Claims and awards in Tenancy Tribunal application 4707851 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – repair/maintenance	$600.00	Compensation – repair/maintenance
Compensation - HHS	$300.00	Compensation - HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

[The landlord/s] must pay [The tenant/s] $920.44 immediately, calculated as shown in the table below:

All other claims are dismissed.

Reasons

Background

Both parties attended the hearing. [The landlord/s representative] appeared for the landlord.

This is a periodic tenancy which began on 18 February 2022. The rent is $750.00 per week and a bond of $3,000.00 was paid.

The tenant filed a cross application on 5 October 2023 (application 4704834) and the landlord filed another application on 10 October 2023.

A case conference was convened by Adjudicator Cheeseman on 14 November 2023. The order following the case conference set out the issues for determination and a timetable for the filing of evidence.

Should the tenancy be terminated?

The tenant, in reply, denies that she would have damaged the shower in this way.

The landlord agrees to address these two issues above. The shower repairs are to be completed by a qualified plumber. This work, and the repair of the floorboard, is to be completed by 17 May 2024.

As set out above, the landlord is to take immediate steps to contact the neighbour and arrange for the repair of the fence as soon as practicable and without undue delay.

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 (1)(A) and Schedule 1A of the RTA.

The tenant claimed the landlord has not lodged the bond with the Bond Centre.

As the tenant is not in rent arrears at the date of the hearing, and does not owe any water charges, this claim is dismissed.

Is the tenant responsible for the damage to the premises?

The landlord claims compensation for damage to the bathroom and the hole in the floor. The landlord also claims compensation for a fraudulent statement by the tenant regarding the HHS.

Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies.

The landlord is insured for tenant damage and the insurance excess noted in the insurance advice is $550.00. The rent for this premises is $750.00 per week.

At the hearing the landlord indicated that compensation based on alleged fraud with reference to the HHS was no longer sought. Exemplary damages are also no longer sought.

In terms of the landlord’s claim that the tenant failed to vacate the premises on termination of the tenancy, since the tenancy has not ended, this claim is also dismissed. Filing fee

As the tenant has been the most successful with her claims, the landlord is to pay the tenant’s filing fee. Name suppression

Tenancy Tribunal case 4707851 — Property damage

At a glance

Tenancy Tribunal case 4707851 — Property damage

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions