Published tribunal order
Tenancy Tribunal case 4710474 — Smoke alarms
Decided 21 Dec 2023 · Published 21 Dec 2023 · Application 4710474
- Smoke alarms
Party names are redacted in the official published order.
Order
- [The landlords] must pay [the tenant] the sum of $2,220.44 immediately as calculated in the table below.
- There is an order suppressing the names of [the tenant] and [the landlord].
Reasons
- Both parties attended the hearing which was conducted by phone. The tenant’s application was set down for a case conference on 7 December 2023, but the parties had been notified that it was to be a hearing. The parties had filed relevant evidence and were expecting the application to be heard that day. It was therefore agreed that we would use the time as a hearing, rather than require them to attend a hearing in Palmerston North on another day.
- The tenant seeks $70,000 in compensation and exemplary damages. He claims that the landlord has: a. Harassed him and his family b. Not complied with fire alarm regulations c. Not complied with the Healthy Homes Standards. Background
- The landlords own the property which is on a farm, which is leased separately along with the farm sheds.
- After a number of people lost their homes and belongings in Cyclone Gabrielle, the landlords decided to let the property fully furnished for victims of the cyclone. They had never let a property before and engaged the services of an agent.
- The tenancy began on 2 May 2023. At that time the property was managed by Property Brokers. This arrangement ended on 17 September, when the landlords took over full responsibility.
- A Healthy Homes Report from Tether Tick, (referred to in this decision as the HHS Report) dated 11 April 2023 noted that the property did not comply with all current Healthy Homes Standards. In particular, it had failed the Ventilation Standard, the Draught Stopping Standard, and the Moisture Ingress and Drainage Standard.
- The HHS Report also contained information about the smoke alarms. Breach of quiet enjoyment/harassment
- The tenant says that the landlord has: a. come to property and introduced themselves without notice; b. removed items from home and shed; c. filled their car up with chattels without asking; d. asked if the alcohol in the lounge was theirs; e. sent friends to check up on them.
- The tenant says that they feel harassed and it has been a dehumanising and belittling experience.
- The landlord said that on 25 May 2023, they were in Taihape to attend the funeral and had arranged with the lessee of the farm property, to uplift a ute vehicle from the farm shed, which is not part of the tenancy.
- The farm lessee had telephoned before the visit to advise that the tenants had contacted him about the water at the house and so they decided to speak with the tenants to make sure that the water issue had been fully resolved and understood how the water worked and they also saw it as an opportunity to introduce themselves. The tenant’s partner invited them in, but they declined.
- On 27 May 2023, the landlords returned the ute vehicle to the farm shed and uplifted some personal belongings from the farm shed and also a weed-eater from the garage for the premises. The tenant helped remove the weedeater.
- After Property Brokers ended the agency agreement, the tenants were in touch with the landlords and said they wanted to stay in the premises, and it was agreed that the two parties would meet at the premises on 15 September 2023 at
- 30pm.
- The landlords attended on 15 September 2023 and described the tenants as very welcoming and offered us refreshments. They stayed about 1 ½ hours.
- On 19 September 2023 the tenants sent the following email. It is reproduced in full as it summarises the tenant’s argument in support of this aspect of his claim: After our interactions with you both on Friday afternoon it has left our Whanau with great feeling (sic) of humiliation, belittlement and disrespect. We gave up our whole life to come and enjoy this wonderful environment and to grow our family. We have a right to peace and quiet enjoyment in your home and you took that from us. We are a very respectful Whanau but Friday was a step too far for us as you stood all over our mana, during our discussion the humiliation we went through with regards to our finances and times we get paid to meet your demands of early payment on Friday at 12.30 in the afternoon was and still is a very raw experience. Then you walked through our home even questioning about the alcohol. You asked if it was OUR grog, your actions and treatment was very belittling to say the least, you then proceeded to remove chattels from the house the pots pans etc from the kitchen without asking us saying your daughter wanted them. It wasn’t what u took from our house but rather how you went about it. This was a very dehumanising experience for all involved. Our 5 year old son was witness to you removing things from our house. He asked why are you taking our things why are you taking out stuff and you didn’t even acknowledge him with an answer you carried on walking to the car as if he didn’t even exist. We no longer feel like tenants that rent your house but rather a young family paying you weekly to up keep your “holiday home” whilst living amongst your unwanted/disregarded possessions. Looking at this situation as a whole and how things have transpired from the beginning of our tenancy its as if this is one big orchestration to get us to where we are now, with the house, belongings, you guys showing up uninvited to introduce yourselves, you sending your friend Maggi over to check on us after property brokers advised us they will no longer be managing this house. We have never been through anything like this in our lives and don’t wish these feelings on anybody. We no longer feel the inviting peacefulness we once did when we first moved into this house. It’s as if you guys can just come and do what you want take what u want because you own the house. We have rights and we have found out that what we are going through and how you have treated us during the tenancy is a breach of our rights as tenants. We no longer wish to reside at your house due to the treatment of our family and the standing all over our mana. We are pursuing the tenancy tribunal as we have found we have a right to compensation due to how this situation has unfolded. This by no means is where we thought we would end up, until how Friday’s engagement left us feeling very humiliated and disrespected. As fare is the bond is concerned we have been advised that u need a change of management form and we need a tenancy agreement before it can be released. Also the bond doesn’t get released to us there is a form which we sign and you sign and the bond gets lodged under your name. We will continue to pay our rent weekly. We are currently looking for a new rental as we no longer feel welcome here or good enough to call this our home. All communications between us to be via email.
- The landlords replied to the email, acknowledging the hurt the tenants had expressed. They wanted to make amends for any hurt suffered.
- In response to the various issues set out in the email, the landlords say that at the 15 September meeting: a. They asked the tenants if they could take with them three casserole dishes and two speakers and that the tenants agreed and helped access those items. (The tenant disputed that this was done with the tenants’ agreement or assistance). b. Some personal items were removed from the locked office (not part of the tenancy). c. The landlords agree that they saw a part bottle of alcohol and asked whose it was. They say they were embarrassed that they may have left it there. It was not intended to be a disparaging remark about the presence of the alcohol, nor questioning the tenants’ use of alcohol. d. They discussed a different payment date for rent.
- The landlords were under the impression that the meeting was friendly and there was no indication at all that the tenants were unhappy with any aspect of the tenancy. They agreed to the tenants installing a glasshouse and looked at the proposed site.
- The landlords also said that a friend who lived in the area contacted the landlords offering to introduce the tenants to the area, hoping to increase the school roll. She took them a cake and spoke with them briefly. There was no intention of the friend being sent to check up on the tenants.
- At the hearing, the landlords acknowledged that when they removed items from the office, they “took a bit of licence” and apologised about that a few days later. In an email dated 19 September, they said they acknowledged that they did infringe the tenants’ rights and overstepped the mark. They said that the offence was unintentional and they apologised. Discussion
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986. For the purposes of this section, “premises” does not include land or facilities. Therefore, the landlord may come on to the land without consent of the tenant, although there may be circumstances in which the manner or frequency of such visits amounts to a breach of quiet enjoyment under section 38.
- There was no evidence that the landlord entered the premises in breach of section 48. Anyone may knock on the door of a house and speak to the occupants. When the landlords did so on 25 May 2023, they did not breach any rights or obligations under the Act. They were entitled to return the ute on 27 May 2023.
- The landlords were in the premises with the consent of the tenants on 15 September 2023 and again there was no breach of their obligations.
- 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.
- 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 consider fact of the visits outlined above amount to an interference with the reasonable peace, comfort or privacy of the tenant. Nor was there any pattern of behaviour directed towards the tenant.
- The landlords acknowledge that during the visit on 15 September 2023 the landlords were not as sensitive as they could have been towards the tenants in their home, but the Tribunal is not required to rule on every slight that may be felt. They have apologised for any offence caused. This is not a case where compensation is warranted and there is no basis for an award of exemplary damages.
- I add that amongst the correspondence were messages from the tenants saying that proposed visits from tradespeople were not convenient to them. As noted above, the landlord may enter the premises after giving the required notice for repairs. The tenant may not refuse entry where there has been compliance with the notice periods set out in section 48 and does not need to be present. The fact that the tradesperson may also be a friend of the landlord’s does not alter that position.
- The claim for breach of quiet enjoyment is dismissed. Smoke alarms
- The tenant says that the landlord has breached their obligations under section 45(1)(ba) of the Act. This requires compliance with smoke alarm regulations made under section 138A.
- 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).
- 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.
- According to the HHS report: Alarm has no expiry date and is within 3m of the end 2 rooms. But the bulkhead separates it from the middle Bedroom. This unit is battery operated and seems to be hardwired. The unit by the front entrance hallway is the same and is outside the bedroom and 2 offices but is also battery operated and not hardwired. The first office needs a code to enter. A WIR connects to the middle Bedroom which requires a smoke alarm.
- The landlords say they were advised that the smoke alarms met the requirements before the tenants moved in.
- The landlords say that an assessment of the home, including Healthy Homes Standards, was arranged by Elizabeth Bunn from Property Brokers after the tenants moved in. This alerted the landlords to issues with the smoke alarms. Arrangements were made for a tradesperson to visit the property to make the property compliant for smoke alarms.
- The landlords said that they did not cancel this work but acknowledge that it was cancelled.
- Initially the landlords thought that as the tenants had indicated they were ending the tenancy that they did not follow this matter up but now acknowledge that they need to send someone to the property to ensure that the property complies with the smoke alarm regulations.
- The tenancy agreement prepared and signed by Property Brokers records that the property complies with section 45(1)(ba). That was not correct, but the landlords are not responsible for that. I note, however, that the date on the HHS Report is 11 April 2023. It seems that the assessment was arranged before the tenancy began. It is not clear when the report was furnished to the landlords.
- In undated correspondence the landlords notified the tenants that their friend, Mr [N] would come to check the smoke alarms.
- I accept that the landlords were initially under the impression that the property was compliant. It appears that the house in its entirety may have been compliant, but the locked offices interfered with the ambit of the smoke alarms.
- At some stage between 2 May 2023 when the tenancy began, and 17 September, when the agency agreement ended, the landlords were on notice that the property did not comply. I find that the landlords have committed an unlawful act under section 45(1A).
- The maximum payable for exemplary damages for this unlawful act is $7,200.
- I recognise that the owners were first-time landlords, but the requirements of the Act applied as soon as they entered into an agreement to rent their property. The landlords have known that the property did not comply since at least May. This is an issue of safety for the tenants. I order the landlords to pay exemplary damages of $1,200 for this breach. Healthy Homes Standards
- The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Act, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). All private rentals must comply with Healthy Homes Standards within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024.
- This tenancy began on 2 May 2023 and so it needed to comply no later than 29 August 2023.
- The General Manager of Property Management for Property Brokers confirmed in a letter dated 4 December 2023 for the Tribunal that the management of the property ended because no work was done to make the property compliant within the 120-day timeframe. Notice of one month of termination of the management of the property was given on 17 August 2023.
- The tenants said that according to Tapi (a rental management app) bookings were made to check the fire alarms and the ventilation units but the bookings were cancelled on 18 August 2023, which I note is one day after the notice was given to terminate the agency agreement. It appears from the printout that it was the agency that cancelled the bookings.
- The landlords say that from time to time, maintenance has been requested and all maintenance requests were attended to and completed as soon as practicable and in any case within 24 hours (house water on 10 May, septic tank on 16 August, header tank on 26 October).
- They acknowledge that they “now” know that they needed to comply with the healthy home requirements within 120 days of the commencement of the tenancy.
- The landlords argue that the tenants have suffered no loss from the breaches of the Healthy Homes Standards. However, the claims are for exemplary damages. Under section 109 of the Residential Tenancies Act 1986 (the Act), the impact on the tenants is only one of the factors to be taken into account. Ventilation standard
- The tenant considers that the landlord has failed to comply with the HHS ventilation standard.
- 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.
- 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).
- According to the HHS Report, the ensuite bathroom and the kitchen have appropriate exhausts, but the other bathroom does not.
- The landlords said that their intention was to obtain two quotes for the installation of an extractor fan. They received one quote on 29 June 2023. Property Brokers ended the management of the property before the second quote was obtained. They telephoned another electrician who cannot go to the property until the middle of January.
- They say that at the meeting on 15 September 2023 they explained the misunderstanding about awaiting the second quote for the extractor fan and the tenant replied, “don’t worry about it, it is not a big deal.”
- The landlords also said that once the tenants had indicated they were moving out, they thought they would wait until the tenants had left.
- The requirements of the Healthy Homes Standards are clear. Landlords must ensure that properties that are being rented comply. Parliament has allowed landlords an opportunity to get the premises compliant since July 2021. If a landlord cannot get the property compliant within 120 days, then they may not be able to rent the property out.
- I find that since 29 August 2023 [The landlord/s] have 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.
- The landlords were on notice that these matters needed to be attended to. They have ignored their responsibilities. It is no defence to say that they were new landlords or that they were expecting the tenants to move out. The responsibilities under the Act apply across the board and for the duration of the tenancy. There has been no notice given and the tenancy has not terminated.
- There is a public interest in reminding landlords of their obligations under the Healthy Homes Standards.
- I have taken into account the fact that the tenants have not raised any concerns with the landlords about the effects of this non-compliance and that there was some expectation that the tenants would soon be gone.
- I have also considered a fair amount across the three HHS breaches and decided that a total of $1,000 is reasonable for all three.
- Considering those factors, I have determined that the landlords should pay the tenants $300.00 in exemplary damages for failure to attend to the bathroom ventilation. They will need to make arrangements to fix this issue as soon as possible. Draught stopping standard
- [The tenant/s] further claims that the landlord failed to comply with the HHS draught stopping standard.
- 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 HHS report outlines a number of draughts from windows that do not shut properly and a fireplace that is not covered. Photographs show window frames in a poor state of repair and very obvious gaps. In fact it is surprising that these matters were not brought to the owners’ attention by the property manager when the property was first listed.
- I find [The landlord/s] committed an unlawful act. Since 29 August 2023 they have been in breach of the requirements.
- The landlords say that they found out about the draught issue in August. Had they known about it sooner they would not have rented out the property. It is unclear why they knew about the ventilation and smoke alarm issue before Property Brokers ended the contract but not the draught stopping issues.
- Considering the factors outlined above, I have determined that the landlords should pay $500 in exemplary damages for this breach. They will need to attend to it promptly. Moisture ingress
- The tenant considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
- 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).
- According to the HHS report not all downpipes are directing water to an appropriate outfall. There is a photograph of one down pipe directing on to the lawn beside the house.
- I find [The landlord/s] committed an unlawful act.
- Again, the landlords say that they became aware of this issue when Property Brokers were ending the contract. It is unclear how they were not aware of this, unless they had not seen the HHS report at all.
- The tenants had not raised any concerns about this, and in the short-term, I find it unlikely that they were adversely affected by this. Nonetheless, since 29 August 2023, the landlords have not remedied the situation. These landlords and others must be reminded of their responsibilities to comply with the Healthy Homes Standards and I order exemplary damages of $200.
- The tenant has been partially successful and I order reimbursement of the filing fee.
- Because both parties have had some success. I have decided to order suppression of the names of both parties.