What was Tenancy Tribunal case 4719729 about?

The tribunal order states: James Truong must pay [The tenant/s] $4,474.64 immediately calculated as

How much money was awarded in case 4719729?

Compensation: $1,454.20 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4719729?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4719729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9860357-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4719729 about?

The tribunal order states: James Truong must pay [The tenant/s] $4,474.64 immediately calculated as

How much money was awarded in case 4719729?

Compensation: $1,454.20 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4719729?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4719729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9860357-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4719729 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4719729 — net $4,474.64 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,454.20	Compensation
Exemplary damages	$3,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,474.64
Total payable by Landlord to Tenant	$4,474.64

Claims and awards in Tenancy Tribunal application 4719729 — net $4,474.64 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,454.20	Compensation
Exemplary damages	$3,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,474.64
Total payable by Landlord to Tenant	$4,474.64

Order

James Truong must pay [The tenant/s] $4,474.64 immediately calculated as shown in the table below.
The tenants’ claim for reduction of the fixed term tenancy is dismissed.
Publication of the tenants’ names and the tenancy address is suppressed.

Reasons

[Tenant 1], [Tenant 2], [Tenant 3] and [Tenant 4] attended the hearing on the tenants’ side. Mr Belcher of Quinovic Property Management attended for the landlord.
The tenants have applied for reduction of the fixed-term tenancy due to end on 21 January 2024 (the contractual end date is 28 January, but the landlord has granted a new tenancy starting on 22 January), compensation and exemplary damages for the landlord’s breach of his obligations in relation to the condition of the premises. Background
The essential facts of this case are not disputed. As well, the tenants, led by [Tenant 1], have provided ample evidence to support their application. They have done everything correctly in terms of documenting the relevant events as they occurred and recording and providing relevant evidence.
The tenancy began in November 2022. The problem surfaced, literally as well as metaphorically, in April 2023. It rained and the water level outside [Tenant 1]’s bedroom at the rear of the premises rose above the level of the concrete slab foundation and entered his bedroom.
The same thing happened in May, July and November. It caused the carpet in the bedroom to become wet and, unsurprisingly, caused dampness and mould. This was very unpleasant for [Tenant 1]. He continued to use the room with the help of a [carpet cleaner], dehumidifiers and driers.
Aside from the times when water visibly entered the room, [Tenant 1] said that there was often a feeling of dampness in the room which he put down to a high water level outside short of flooding the room.
He reported the problem to the landlord every time it occurred. After the first time, the landlord sent a handyman to dig a shallow trench outside the room. It appears that the trench had no effect. The handyman was meant to attend after the second event, but he didn’t.
The landlord did nothing further about ascertaining the cause the of the problem or fixing it until early November. Mr Belcher said that a contractor identified a cracked concrete pipe under the driveway and a blocked council drain. He said that the pipe was fixed, and the council were asked to clear the drain. There was no supporting evidence for any of this.
The tenants produced a photograph taken on 12 December, after completion of the remedial work, showing water ponding outside the room after some rain suggesting that the problem had not been fully overcome although there was no evidence that the water entered the room then.
The tenants vacated the premises on 18 December and moved into another rental. They signed that rental agreement on 10 August. They have continued to pay the rent for the premises, and they seek repaying of rent from 18 December.
I will refer to other evidence in more detail below. The Tenants’ Claims Compensation
The tenants claim $1,454.20 compensation made up of the cost of a [carpet cleaner], power usage, rent rebate and loss of earnings. The claim is modest. There is no claim for general compensation for discomfort, inconvenience and stress. But I can take that into account when I consider exemplary damages. The landlord accepts this claim, and so it has been awarded. Ending the Tenancy
The Tribunal may reduce a fixed term tenancy under s61(1) of the Residential Tenancies Act where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. There has been an unforeseen change in the tenant's circumstances.
The section is intended to provide a form of relief for tenants who would be seriously and adversely affected if they were held to their fixed term tenancy due to something unexpected happening to them. A good example would be unexpected ill health. In my view it is not intended to deal with situations such as this where the premises are defective and that adversely affects the tenant. There are other provisions of the Act that address that kind of situation.
The obvious this for the tenants to have done in this situation was to serve a breach notice on the landlord under s56 of the Act. That would give the landlord the opportunity of remedying the breach. If the landlord does not do so within a reasonable time, the Tribunal, after considering all the circumstances, may then terminate the tenancy.
The tenants did not serve a compliant breach notice. The closest they came to it was an email to the landlord on 23 October. But the email does not state what the landlord is required to do to remedy the breach (namely fix the drainage outside the room).
I accept that the landlord (by his agent) agreed to treat the email as a breach notice and so I am willing to treat the email as a breach notice. But I decline to terminate the tenancy for the landlord’s failure to comply with it.
The landlord had some work done in early November which is within a reasonable time. Whether the work has remedied the problem is questionable. But there is no hard evidence that it has not.
I know more about drainage problems than I would like to know due to experiencing such a problem myself recently. I doubt that fixing the existing drains will overcome the problem because they are designed to take water from the roof via the downpipe away to the council storm water system. The problem here is ground water and that will probably require a new drain running the length of the premises discharging to the council storm water drain. But I am not an expert, and it would be inappropriate for me to determine the issue without some independent evidence.
The other question is whether it would be reasonable to terminate the tenancy. In this case I think not for the following reasons. a. The tenancy is about to end anyway. b. I cannot end the tenancy on a date before the hearing under s56. c. The problem primarily affects one room in the premises. d. There are other remedies available.
For all these reasons I dismiss the tenants’ claim for termination. Exemplary Damages
Under section 45 of the Act, a landlord must, relevantly, provide and maintain the premises in a reasonable state of repair, comply with any relevant enactment in relation to buildings, health and safety and comply with the healthy home standards.
The healthy homes standard in relation to drainage requires the premises to have a drainage system that efficiently drains storm water, surface water and ground water to an appropriate outfall.
The Housing Improvement Regulations 1948 provide that every house must be free of damp.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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.
The landlord’s attitude to the tenants’ complaints is exemplified by his initial response which was to suggest that the tenants find a shovel and dig a trench along the side of the house. That was not an acceptable response. I note here that the landlord had not appointed a property manager at that time. He did not do so officially until the end of June. But soon after the first complaint he did enlist Mr Belcher’s help.
A handy man came and dug a shallow trench and sealed up the drain holes in the brickwork at the foundation level. I may not be a drainage expert, but I can confidently say that a trench was not going to make any difference, and it didn’t. The water continued to rise and filled the drain. Blocking the drain holes was also a mistake because they are there to allow water to drain from the wall cavity and therefore prevent dampness.
The fundamental mistake made by the landlord was not to call in a drainage expert or at the very least a qualified builder. The landlord had cleared most of the vegetation around the house after he bought it in late 2022 and he had put fill down along the side of the house for parking. The fill was to the level of the concrete slab foundation. Without good drainage, that combination created an obvious risk of flooding to the house.
Mr Belcher said that it is likely that the landlord obtained a building report when he bought the premises. I agree. It would have been reckless to do otherwise. But no report was produced. The tenants suggested that the landlord was probably aware of the potential for flooding when he let the premises to them. I don’t think I can accept that, although I am concerned that a building report was not produced. The fact remains that the risk of flooding would have been obvious to a reasonable observer.
The handyman was to return to the premises after the May event, but he didn’t. The landlord took no further steps to address the problem until November, according to Mr Belcher. There were also promises to reimburse the tenants for the expenses they incurred in dealing with the problem, but there was no payment.
The landlord’s response to the flooding problem was inadequate. In fact, it was abysmal. Apart from sending a handyman to dig a useless shallow trench, the landlord left the tenants to cope and suffer the problem. Even when the landlord took some more substantial action, it was unlikely to be effective. As well, the landlord produced no evidence to support any of the information given to the Tribunal.
There has been a serious and persistent breach by the landlord of his obligations concerning drainage from around the premises and the breach has had unpleasant consequences to one tenant particularly but also for the other tenants. These are young people who are friends having their first experience of renting. It would not have pleasant for any of them to see their friend and housemate having to tolerate having his bedroom flooded repeatedly.
I accept that the problem was much wider than a few days on four occasions when water entered the room. It is likely that there was dampness at other times as well. I also accept that the risk of flooding caused one tenant consternation and stress when it rained. There was also considerable inconvenience involved in trying to get the landlord to act.
Plainly it is in the public interest for landlords to comply with their building obligations and it is certainly in the tenants’ interests for them to do so. I regard the landlord’s breach as serious and persistent and a substantial award of exemplary damages is required to recognise that, the effect on the tenants and as a deterrent to this landlord and other landlords. An award of $3,000 is appropriate. Filing Fee
The tenants have largely succeeded and so I have awarded the filing fee. Suppression
The tenants have had substantial success and so I grant them name suppression.

Tenancy Tribunal case 4719729 — Exemplary damages

At a glance

Tenancy Tribunal case 4719729 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions