What was Tenancy Tribunal case 4716089 about?

The tribunal order states: Fh 2018 Limited As Agent For Long Lin must pay [The tenant/s] $3,520.44

How much money was awarded in case 4716089?

Compensation: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4716089?

The dispute type was not classified.

Where can I read the official tribunal order for case 4716089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9954550-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4716089 about?

The tribunal order states: Fh 2018 Limited As Agent For Long Lin must pay [The tenant/s] $3,520.44

How much money was awarded in case 4716089?

Compensation: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4716089?

The dispute type was not classified.

Where can I read the official tribunal order for case 4716089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9954550-Tribunal_Order_Redacted.pdf.

19 Pinkerton Grove, Newlands, Wellington 6037 Tenancy Tribunal Case 4716089 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4716089 — net $3,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$3,500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,520.44
Total payable by Landlord to Tenant	$3,520.44

Claims and awards in Tenancy Tribunal application 4716089 — net $3,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$3,500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,520.44
Total payable by Landlord to Tenant	$3,520.44

Order

Fh 2018 Limited As Agent For Long Lin must pay [The tenant/s] $3,520.44 immediately in accordance with the following table:

Reasons

Both parties attended the hearing. Mr Mason represented the landlord.
The tenants seek $15,000 compensation for various alleged breaches of the Residential Tenancies Act 1986 (RTA) by the landlord during the tenancy. They say the home was inherently prone to mould, was not adequately maintained and was not Healthy Homes Compliant. Because of these issues which they say they raised but were not addressed, they suffered higher bills, got sick and eventually needed to relocate.
I discuss each claim separately, however before I do, it is useful if I outline the requirements for proof. In the Tenancy Tribunal applicants, the landlord here, are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. It is up to the parties to establish their case and it is not for the Tribunal to extract the necessary evidence.

Was the property adequately maintained?

Section 45 of the RTA outlines a landlord’s responsibilities to 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 and comply with any relevant enactment in relation to buildings, health and safety. The tenants contend that the landlord here has breached section 45 of the RTA. Insulation
The tenants noticed in September 2021 that the underfloor insulation was incomplete. They raised this with the landlord and followed up a number of times. The insulation was partially installed in April 2023 but at no point during the tenancy, which ended in May, was the underfloor insulation complete.
Mr Malcom provided an [insulation] Compliance Certificate 1 which states that the underfloor has foil insulation. He says his company relied on this when they took over managing the tenancy.
The tenants have provided photos of the foil insulation being in a state of disrepair and only covering part of the underfloor.
Section 45(1)(bb) of the RTA requires properties to be fully insulated in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (Insulation Regulations). Specifically, 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. It is unclear when the foil was installed.
It is accepted here that throughout this tenancy the underfloor was incompliant with the Insulation Regulations. Primarily, and importantly for these tenants, it 1 8 February 2019 was their bedrooms that were not insulated at any point. Mr Mason’s evidence is that he passed the issue on to the owner Mr Lin who was dealing with it, which is essentially all he could do.
The landlord has clearly breached section 45(1)(bb) of the RTA in failing to compliantly insulate the underfloor of this property. This is a positive obligation and as such should have been checked prior to the tenancy commencing, it was not for the tenants to have to raise. They did and yet the breach was still not rectified.
I discuss redress below.

Was the home Healthy Homes Standards complaint?

Section 45(1)(bb) of the RTA also requires compliance with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS).
This tenancy originally commenced in February 2021. Under that tenancy, the home would not have needed to be compliant with the HHS until 2025. However, in February 2022 the tenancy was renewed for further year. A renewed tenancy is different to an extended tenancy in that legally it acts as an entirely new lease. This means that the HHS timeframe commenced from the date of the renewal being 26 February 2022. At that time the law required homes to be complaint within 90 days of commencement, which here would be 27 May 2022. In short, the property was legislatively required to be HHS compliant by 27 May 2022. Draught stopping
The draught stopping HHS standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, and which allow draughts to arise.
It is accepted that there were gaps in window frames in the lounge and external doors (lounge external and front door) large enough for a $2 coin to slide through when closed. The tenants advised of this concern specifically by email on 20 September 2022. The remedial work was undertaken after the tenancy ended.
Accordingly, the property was not HHS compliant with the draught stopping standard. Again, this was a positive obligation on the landlord and also one that had been raised by the tenants. I discuss redress below. 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.
The tenants say the downpipe guttering on one side of the house was blocked even before the tenancy commenced. [Tenant 1] unblocked it at one point and when he did so he noticed that it emptied onto a back driveway rather than into a gutter. This is accepted, as is the fact that the home does not have a ground moisture barrier.
Regulation 27 of the HHS states that tenancy building must have a drainage system that efficiently drains storm water, surface water, and ground water to an appropriate outfall. The evidence here indicates that it was blocked in the first instance and that it emptied onto the drive which is not an “appropriate outfall”.
Tenants are not required to clear out drains; this is a landlord responsibility.
No evidence has been provided that the home is exempted from having a ground moisture barrier pursuant to Regulation 28 of the HHS. Accordingly, I accept that submission that the home is not exempt and was required to have such a barrier.
Therefore, I find that the landlord has breached the HHS moisture ingress and drainage standard. Again, this was a positive obligation on the landlord but was also raised by the tenants without adequate response. I discuss redress below. Ventilation
There is no dispute that throughout the tenancy mould accumulated on the bathroom ceiling and the paint was peeling. Both mould and the peeling were present when the tenants moved in. Mr Mason accepts that because of this, it was clear the extractor fan was not working. The tenants raised concerns about the ceiling on various occasions and on 15 February 2023 (two years into the tenancy) the extractor unit was removed. The hole however was left and not replaced during this tenancy.
Accordingly, it is accepted that the tenants had an insufficient fan for the first two years of their tenancy and no fan, (and a hole in the ceiling), for the last approximate three months.
The HHS ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. Therefore, the home was not compliant with the HHS ventilation standard during the tenancy and there was a lack of maintenance with regards to leaving a hole in the ceiling. I discuss redress below. Heating
There is no dispute that there is a heat pump in the home which meets the HHS requirements. The tenants however say it does not function effectively. Specifically, they say the heat pump was not serviced during their tenure and it was growing moss on the outside which made it inefficient. They say occasionally it would turn itself off and would make loud noises at times.
Mr Mason says that when the issue was raised the owner looked at it and ascertained it was working sufficiently and so took no action. He does not believe the moss would affect its functionality. He is unsure if or when the heat pump was serviced.
The photos do indicate moss, but it is not extensive. I do not find it established that this level of moss would substantially affect the functionality of the heat pump. However, I do accept that it was not serviced during this tenancy and there is no evidence as to when it was last serviced. I therefore infer, on the tenants’ evidence which I find credible, that it has not been serviced for some time and as such was not working as it should. This is a lack of maintenance and accordingly a breach of section 45. I discuss redress below. Documentation
On 18 October 2022, several months after raising the above discussed issues, the tenants specifically asked for the HHS compliance documentation. Mr Mason provided the original [insulation] compliance certificate which only relates to insulation. Nothing else was provided as nothing else was held.
Under section 45 of the RTA, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the HHS within 21 days after receiving the request. This obligation was breached here by the landlord because they did nothing to obtain that documentation, let alone provide it, and as such I discuss redress below.

Is the home inherently prone to mould?

Separate to the issues with mould in the bathroom, mould also accumulated on the walls and ceilings of the bedrooms. Pictures have been provided of damp spots on the ceiling in one of the bedrooms, mould patches on the walls and ceiling and clothing that is riddled with mould. The clothing was in cupboards and drawers with [moisture prevention] moisture absorbers. Photos also establish some of the mould was present when the tenants moved in.
This issue was raised with Mr Mason and he had a builder look in the ceiling to check for leaks; he found none. His view is that the mould was accruing due to a lack of ventilation and the plants the tenants had growing in that room.
The tenants are clear that they ventilated the rooms well. They both had dehumidifiers in their rooms, one room had an air purifier, and they left the windows open when they could. They say they cleaned the mould off monthly and it would grow back within a week. They established in evidence that they only had a few very small plants in the room.
In New Zealand, many houses produce mould during cold, wet seasons. Mould is usually eradicated by wiping with an appropriate cleaner. Mould will grow in a home where humidity remains high but has difficulty surviving in low humidity. There are two ways to reduce humidity: by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without extensive mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
Mould was present at the commencement of the tenancy in the bathroom and bedroom. The tenants say they ventilated regularly, and I consider them credible witnesses although I expect they did not heat the property as thoroughly as they could have for economy reasons.
Given the mould was present before the tenants even moved in, I consider it more likely than not that the home is prone to mould. The reason for the mould is unclear but may well relate to the lack of insulation and a ground moisture barrier combined with little sun in that end of the home. I do not find the tenants’ plants contributed to any humidity given they were so small.
This issue has arisen because of the home’s lack of compliance with the law in other areas, as discussed above. Accordingly, I discuss redress holistically below.

What monetary orders should be made?

I have made the following findings for which the tenants seek specifically compensation: i. The property was not insulated in breach of the Insulation Regulations and section 45(1)(bb) of the RTA. ii. The property did not comply with the following HHSs: a. Ventilation; b. Moisture ingress & drainage; c. Draught stopping. iii. The landlord did not provide the HHS documentation when requested. iv. The heat pump was not adequately maintained. v. A hole was left in the bathroom ceiling for at least three months. vi. The home is inherently prone to mould as a result of these breaches of the RTA.
The application solely seeks compensation, therefore that is what I assess.
The tenants’ evidence is that they had higher power bills due to the lack of insulation, the gaps/drafts from the doors/windows, an inefficient heat pump, and running an air purifier and dehumidifier due to mould. They also say extra cleaning supplies were required and extra cleaning was needed due to recurring mould. Further they say that during the tenancy a dehumidifier, air purifier and [moisture prevention] products were purchased to help the moisture/mould issues. They have provided specific evidence of purchasing [moistuire prevention] products to a cost of $20 and an air purifier which cost $237.
Finally, extra medical expenses were incurred due to respiratory issues (specifically pneumonia) [Tenant 2] developed during the tenancy. [Tenant 2] says he was healthy until this property and has been since he moved out.
Mr Mason argues that the tenants should not be entitled to compensation given they filed the application (in October) so long after the tenancy ended (in May). He accepts the breaches discussed above but says they were working on them, and they have all been remedied post tenancy.
On this point I accept the tenants’ evidence that they needed to make sure they were in a long-term home and no longer needed to rely on a reference from Mr Mason. Whilst I accept Mr Mason’s evidence that he would have given a good reference regardless, I do understand the reasoning for the late application.
Damages claimed, and awarded, must flow naturally from the breach and be reasonable. 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 of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of the RTA.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a common sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
The object of a tenancy agreement is to give tenants the right to occupy premises in consideration for rent (see the definition of tenancy in s 2 of the RTA). The rent set must be reasonable in light of the state of the house. While there are many bases upon which compensation could be calculated, a common approach – and the one which I adopt in this case – is the difference between a fair rent for the premises in their condition and rental actually paid.
The tenants commenced this three-bedroomed tenancy on a rental of $680 per week. It subsequently increased to $700 per week in February 2022. The ‘market rent’ as assessed by Tenancy Services for a three bedroomed property in Newlands for the early part of 2023 was: Lower Quartile: $660 Median rent: $695 Upper Quartile: $734
Therefore, this property for the last section of the tenancy was priced in the median to upper quartile of rented properties in Newlands. I do treat these figures with caution however as they do not include reference to amenities for properties further than the number of bedrooms. It is basic data based on bonds lodged.
Given the lack of compliance with the law of this home, I would more correctly assess the property as being in the lower quartile of rented properties. I therefore consider it was rented at a higher price than it was worth.
I also note that not only has the landlord breached the law, but they have also breached their contract with the tenants in providing them with an incompliant home; one that was not adequately or correctly described by the tenancy agreement. The tenants are therefore entitled to pecuniary losses on the basis of that breach of contract.
Having assessed all the evidence I find that an award of $3,500 compensation is justified. This equates to a rent reduction of approximately $30 per week.
This is a high award and I make it on the basis that the landlord failed to ensure the property was compliant with the law when it was rented out and then failed to address the tenants’ concerns about the issues when they raised them. This is a wholly unacceptable state and detrimentally affected the tenants. The tenants met their obligations in raising the issues and then following up on them. It was unsurprising that eventually they had had enough and decided to relocate.
Given the high award, this also covers the costs the tenants were put in in purchasing their own mitigators towards the damp (incidental damages) and their other associated costs. Suppression and Filing Fee
Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee and approve their application for suppression.

Tenancy Tribunal case 4716089 — Tenancy dispute at 19 Pinkerton Grove, Newlands, Wellington 6037

At a glance

Tenancy Tribunal case 4716089 — Tenancy dispute at 19 Pinkerton Grove, Newlands, Wellington 6037

At a glance

Award balance

Claims & awards

Order

Reasons

Was the property adequately maintained?

Was the home Healthy Homes Standards complaint?

Is the home inherently prone to mould?

What monetary orders should be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the property adequately maintained?

Was the home Healthy Homes Standards complaint?

Is the home inherently prone to mould?

What monetary orders should be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions