What was Tenancy Tribunal case 4715969 about?

The tribunal order states: Janene Lee Simpson (nee McCarthy) must pay [The tenant/s] $2,420.44

How much money was awarded in case 4715969?

Compensation: Fixed Water Fee Refund: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4715969?

The dispute type was not classified.

Where can I read the official tribunal order for case 4715969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10568142-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4715969 about?

The tribunal order states: Janene Lee Simpson (nee McCarthy) must pay [The tenant/s] $2,420.44

How much money was awarded in case 4715969?

Compensation: Fixed Water Fee Refund: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4715969?

The dispute type was not classified.

Where can I read the official tribunal order for case 4715969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10568142-Tribunal_Order_Redacted.pdf.

Unit/Flat 8, 137A Selwyn Street, Onehunga, Auckland 1061 Tenancy Tribunal Case 4715969 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4715969 — net $2,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: fixed water fee refund	$2,400.00	fixed water fee refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,420.44
Total payable by Landlord to Tenant	$2,420.44

Claims and awards in Tenancy Tribunal application 4715969 — net $2,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: fixed water fee refund	$2,400.00	fixed water fee refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,420.44
Total payable by Landlord to Tenant	$2,420.44

Order

Janene Lee Simpson (nee McCarthy) must pay [The tenant/s] $2,420.44 immediately being refund of the fixed water fee and reimbursing the filing fee, as calculated and shown below: DescriptionTenant Compensation: fixed water fee refund $2400.00 Filing fee reimbursement $20.44 Total award $2420.44 Total payable by Landlord to Tenant $2420.44
I am dismissing the tenant’s claim for compensation for loss of possessions in the floods. The tenant has not proven her claim in terms of ownership, value, and loss.
I am dismissing the tenant’s claim that she is owed one weeks rent in advance. The landlord has provided rent records that accord with her evidence. The tenant has not provided any evidence to refute the records provided.

Reasons

Both parties attended the hearing.
This is a tenant application. A case conference was held, and an Order made on 26 February 2024. In the case conference the issues were largely determined. The following were the issues to be discussed at the hearing scheduled before me on 15 May 2024. I apologise to both parties for the time it has taken me to complete this order.
The tenants’ claims are : -Ongoing mould -Burst water pipes causing flooding and loss and damage to possession. -Compensation for loss. -Breach of Healthy Homes Standards. -Unlawful entry by landlord into property. -Refund of fixed water costs. -Refund of one weeks rent paid in advance. -Unlawful termination of the tenancy. -Exemplary damages for breaches of the Residential Tenancies Act 1986 (RTA)
For completeness initially the tenant was claiming that the landlord had failed to lodge the bond on time and that there were two tenancy agreements in effect. Both of these claims were withdrawn by the tenant at the case conference hearing. Background:
The tenancy commenced on 13 September 2008 and terminated on 19 July 2023.
The property was significantly damaged in the Auckland Floods in January 2023 requiring the tenant to move out temporarily for a full renovation of the property.
The renovation took 5 months to be completed requiring the tenant to live elsewhere during this time. There was an expectation that the tenancy would recommence once the work was completed on the property.
Days before the tenant moved back into the property on 24 June 2023 the landlord advised her that her father maybe moving into the property at some stage.
On 4 th July 2023 the landlord served the tenant with a 63-day notice to terminate the tenancy with an end date of 5 September 2023.
The tenant left the property earlier than that with the consent of the landlord. The tenant left the property on 19 July 2023. Water bill- fixed wastewater:
Water suppliers charge for wastewater. Watercare includes in their monthly invoices a portion of water charges that include the fixed wastewater charge.
The landlord is responsible for the portion of the invoice for fixed wastewater and not the tenant.
The tenant provided copies of the water bills which included the fixed wastewater portion.
The landlord stated that she did not know that a landlord had to pay this portion until advised by the tenant. The landlord acknowledged that she would pay any overpayment by the tenant to the water bills. Both parties agreed that the average fixed wastewater portion was $20.00 per invoice. Over each year on that basis the tenant should be refunded $240.00 per year.
This is a tenancy of 15 years however I am not awarding 15 years of refund. The reason being that the water bills would have been significantly less 15 years ago, and I cannot make an accurate assessment because I do not have 15 years’ worth of water bills to view.
I am awarding the tenant $2400.00 in compensation for the overpayment of water bills.

Breaches of s 45 RTA?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must ,amongst other things: -provide and maintain the premises in a reasonable state of repair. -comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 -comply with any relevant enactment in relation to buildings, health, and safety.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenant said that there were ongoing issues with mould and several water leaks during the tenancy and that there was no insulation in the property. The tenant complained that there was no heat pump, DVS or smoke alarm fitted when she returned to the property after then renovation.
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. Insulation:
[The tenant/s] claims that the landlord has breached the obligations under section 45(1) (bb) of the Residential Tenancies Act 1986 by failing 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 RTA.
The tenant said that there was no insulation in the walls. The internal wall linings were removed at some point during the tenancy and the tenant claimed it showed black mould and no insulation in the dining room walls. The tenant talked about on going mould issues which she puts down to the lack of insulation.
The landlord stated that the property was compliant with the Healthy Homes Standards under the RTA (“HHS”), obligations with pink bats that have a R- Value of 1.5 in the ceiling and is a house of concrete block and brick construction.
There is no insulation in the walls as it is a 1980’s home with a concrete block base.
Ceiling and underfloor insulation has been compulsory in all rental homes since 1 July 2019. However, a home could be exempt regarding underfloor insulation if, as in this case, the floor is a concrete base and therefore it is impracticable to insulate.
I do not find that the landlord has breached the Healthy Homes Standard relating to insulation. Heating:
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1) (bb) of the Residential Tenancies Act 1986 (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 heating standard.
Compliance dates for the HHS vary depending on the tenancy: a. 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. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
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).
The tenant stated that when she moved back to the property in June 2023 after the renovation, there was no smoke alarm or heat pump installed for the first week. She stated that as she was paying full rent, she would have expected these to have been installed. The tenant claimed that this is a breach of the landlord obligation regarding heating standards and smoke alarms.
The landlord stated that the tenant moved back before all the work had been completed. She was unaware that the heat pump and smoke alarm had not been installed. Furthermore, the delay was caused by the heat pump installer and not the landlord or the builder.
In this case I have determined that the landlord has not committed an unlawful act. This was a one-off situation where the landlord was not aware that these requirements had not been complied with.
Private rentals must comply with the HHS by 1 July 2025. This was not a new or renewed/varied tenancy agreement. It was a continuation of the tenancy agreement commenced on 13 September 2008.
For the reasons stated above I do not find Janene Lee Simpson (nee McCarthy) committed an unlawful act.
For completeness I find that the landlord did not fail to maintain the property. The Tribunal have been provided with evidence of the work that was undertaken by the landlord during the tenancy when issues were raised by the tenant. The following work was carried out: -2009 toilet tiles replaced, and kitchen tap fixed. -2011 Bathroom repairs fixed crimped pipes. -2011 Mould issues so cleaned mould off and repainted -2012 Tree removal -2015 Laundry flood and separate hot water pipe burst, crimped pipe repairs. -2016 Shower taps and rose leak repaired. -2016 DVS system installed. -2017 Thermal backed curtains installed. -2018 Repaint throughout. -2019 Replacement of taps in bathroom -2020 Dimple Heater and thermal curtain provided. -2021 Splits in shower hose replaced. -2022 Trees removed, replaced wooden garden surrounds, new garage door and remote, pest control for rats and ants. -Regular maintenance of fence painting, water blasting and house painting.
The tenant did not dispute these assertations made by the landlord regarding maintenance.
In January 2023 the property was extensively damaged in the Auckland floods and the property was fully renovated. Unlawful entry:
[The tenant/s] claims the landlord has entered the premises without consent or notice.
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.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant gave evidence at the hearing that the landlord has been into the property without her consent. She relied on one photograph that the landlord used to advertise the property for rent to a new tenant.
The tenant says that photograph showed her couch in the lounge which indicates they were taken before she had left the tenancy.
The landlord stated that she did not enter the property without the tenant’s knowledge. She said the photos were taken a time when the tenant was not in the property and not paying rent during the renovation period.
The landlord believed in those circumstances she was permitted to enter the house and take photos for the advertisement.
I cannot determine who is correct on the evidence I have been given and heard.
Furthermore, this was clearly a one-off event and for the sole purport of advertising to relet.
I do not find that the landlord has committed an unlawful act. Compensation for lost possessions in the Auckland floods and hot water cylinder leak:
The tenant has made a claim for compensation for the loss of her possessions in the floods and water leaks.
However, I cannot consider this claim as there is no evidence of ownership, value, and loss of possessions. The tenant has not quantified her loss.
I am dismissing the tenants claim for compensation for the loss of her possessions in the floods. Refund of rent paid one week in advance:
The tenant claims that the landlord owes her one weeks rent which she paid in advance. The landlord rejects this and states that there is no rent money owing to the tenant.
The landlord attached a spreadsheet recording the payments made by the tenant for rent. According to the rent records the landlord does not owe the tenant one weeks rent.
I have nothing from the tenant to refute the rent records provided by the landlord.
I must dismiss this claim for one weeks rent. Unlawful termination of the tenancy:
RTA sets out when a landlord may give notice to a tenant to end a periodic tenancy.
The landlord gave 63-days’ notice to end the tenancy as the premises were required within 90 days after the termination date as the principal place of residence for a member of the owner’s family.
The landlord stated that she issued the 63 days’ notice on 4 July 2023 and the tenant left on the 19 th of July 2023. The tenant had until the end of September but chose to terminate the tenancy earlier than required.
I understand that the tenant had been residing for 5 months previously in temporary accommodation while the renovation was being carried out at the property and needed to have a permanent home.
As the tenant sought to leave early, the landlord needed to cover her rent until her father was in a position to move into the property, which was anticipated to be 10 weeks. An advertisement was put on social media to obtain a new tenant.
The tenant says that this was evidence of the clear intention of the landlord to terminate her tenancy and get in a new tenant who would pay a higher rent than she was. The rent had gone from $550.00 per week that the tenant was paying to $670.00per week.
The landlord responded by saying that as the tenant had been at the property for 14 years, she had deliberately kept the rent at a lower rate. Furthermore, that she only advertised and got in new tenants because the tenant moved out after 2 weeks of the termination notice and the landlord needed money until her father moved in.
The landlord provided evidence of her father ill health and the effect that had on their decision not to move him into the property. Without detailing the father’s health issues it is clear from the information provided to the Tribunal that the father suffered major health issues over the course of 2023 which ultimately meant he was not able to take up residing in the property.
I have no evidence to suggest that the landlord was being untruthful when she gave the notice and explained the intention was to move her father in.
Both parties agreed that prior to the termination they had a good long time working relationship. Suppression and filing fee:
The applicant has applied for suppression of her name and details and as she has been partially successful, I am granting suppression.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4715969 — Tenancy dispute at Unit/Flat 8, 137A Selwyn Street, Onehunga, Auckland 1061

At a glance

Tenancy Tribunal case 4715969 — Tenancy dispute at Unit/Flat 8, 137A Selwyn Street, Onehunga, Auckland 1061

At a glance

Award balance

Claims & awards

Order

Reasons

Breaches of s 45 RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Breaches of s 45 RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions