What was Tenancy Tribunal case 4721069 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4721069?

Compensation: $1,400.00 awarded to tenant; Smoke Alarms: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4721069?

The primary dispute was Smoke alarms.

Where can I read the official tribunal order for case 4721069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10097229-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4721069 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4721069?

Compensation: $1,400.00 awarded to tenant; Smoke Alarms: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4721069?

The primary dispute was Smoke alarms.

Where can I read the official tribunal order for case 4721069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10097229-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4721069 — Smoke alarms

Claims and awards in Tenancy Tribunal application 4721069 — net $2,170.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,400.00	Compensation
Exemplary damages: Smoke alarms	$750.00	Smoke alarms
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,170.44
Total payable by Landlord to Tenant	$2,170.44

Claims and awards in Tenancy Tribunal application 4721069 — net $2,170.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,400.00	Compensation
Exemplary damages: Smoke alarms	$750.00	Smoke alarms
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,170.44
Total payable by Landlord to Tenant	$2,170.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Olivia Richardson must pay [The tenant/s] $2,170.44 immediately, calculated as shown in the table below.
The landlord’s application is dismissed.

Reasons

[Tenant 1] and [Tenant 2] attended the hearing for the tenants. Mrs Monson attended with Mr Bede Pascoe.
The tenants have applied for compensation and exemplary damages relating to the condition of the premises, failure to comply with smoke alarm requirements and for renting unlawful residential premises.
The landlord has applied for exemplary damages for the tenants’ refusal to allow entry to the premises. Background
This tenancy began on 30 January 2023 and ended on 16 August 2023. It was ended early by agreement after the tenants complained of damp and mould in the premises.
The premises consist of a two bedroomed house and a converted garage. The garage consists of a living area incorporating a kitchen, a bedroom, and a bathroom. It is therefore self-contained, and I will refer to it as the unit.
The landlord has owned the premises since 2020. She and her family lived in the main house for two years. During that time the unit was rented to a friend. The house and unit were then rented to the tenants. Two of the tenants lived in the house and the other tenant lived in the unit.
There was a written tenancy agreement but neither party was able to produce a copy of it. The tenants said that they didn’t receive a copy of it after they signed and returned it to the landlord. The agreement came with the required healthy homes and other information.
The landlord said that the insulation in the roof space of the house was compliant and there was no evidence to the contrary. The house is an older property and there was no wall insulation, and the windows were single glazed. The underfloor space was not accessible and so there was no ground vapour barrier or underfloor insulation.
The tenants raised some maintenance issues with the landlord during the tenancy and generally she was responsive to them. On 24 July, the tenants messaged the landlord stating that the dampness and mould in the house were “getting out of hand”. The landlord accepted that there was a serious mould problem.
The tenants wanted to be released from the tenancy and the landlord readily agreed. The tenants also asked for a rent reduction and the landlord reduced the rent by a total of $600.
Shortly after the tenants complained about the mould, the landlord asked for access to make a hole in the floor so that the underfloor space could be inspected. The tenants declined the request because they were concerned about the effect that could have on their health. The landlord did not serve a notice to enter to carry out necessary maintenance or repairs.
The landlord had provided the tenants with two dehumidifiers to use in the premises. They used one in the house and the other in the unit. The landlord said that she had used both in the house when she was living there.
The tenants said that they had the dehumidifier running night and day as well as the heat pump and other heaters and the house was still cold and damp. They said that their power bill ranged from $200 in the summer to $700 in the winter.
After the tenancy ended, and three weeks into the current tenancy of the premises, the landlord found that a gully trap outside the kitchen was blocked and water building up in it was able to get under the house through the pipe penetrations. There was no evidence that the same thing had occurred during this tenancy. Law
Section 45 of the Residential Tenancies Act 1986 (the Act) requires a landlord 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.
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.
Regulation 15 of the Housing Improvement Regulations 1947 provides that every house must be free from dampness.
Regulation 9 provides that every bathroom must have a window that opens to the outside or other adequate means of ventilation.
Where a landlord rents out unlawful residential premises the consequences may include ordering them to repay up to the total amount of rent paid by the tenant.
Unlawful Residential Premises are premises that cannot be lawfully occupied by the tenant. Claims Windows
There was some evidence that windows did not close completely due to faulty stays. I find that the evidence does not prove that there were significant draughts from the windows. It was accepted that the tenants complained about a loose stay and the landlord did not attend to it. But I note that the fix involved securing a loose screw into the window frame possibly with some minor packing of the screw hole. If it was a significant problem, I would have been a simple thing for the tenants to fix. No Smoke Alarm in the Unit
The tenants called in an Inspector from the Council to investigate whether the unit was compliant. There is no written report, but the tenants said that the Inspector told them that there was no sign of a smoke alarm in the unit.
The landlord said that when she was living in the house there was a smoke alarm in the unit, but she did not check that there was one before this tenancy began. She referred to an ingoing inspection and report where that sort of requirement should have been checked off.
The tenants said that the ingoing inspection was more about them pointing out any issues they could see with the premises. The landlord could not produce any evidence that there was a smoke alarm in the unit.
I found all those who gave evidence to me to be reliable and credible witnesses. I accept the tenants’ evidence that the Inspector did not see a smoke alarm in the unit, and I find that there was none. There were two smoke alarms in the house.
There should have been a smoke alarm inside or within three metres of the bedroom door in the unit.
A breach of this requirement is serious which is evident from the high limit of exemplary damages that can be awarded. A failure to comply can have devastating even fatal consequences.
Aside from the friend staying in the unit, the landlord was a first-time landlord. I accept her evidence that there was a smoke alarm in the unit previously. He should have checked before she granted this tenancy and for that reason and the importance of the requirement, I find that there should be an award of exemplary damages. Normally such an award would be substantial but there are mitigating factors here. Therefore, an award of $750 is appropriate. Unlawful Residential Premises
The landlord converted the garage into a self-contained residential unit without obtaining the necessary consents. She has now applied for a Certificate of Acceptance from the Council. The garage has not been occupied since the tenancy ended.
In my view, premises will not be unlawful residential premises unless their occupation by the tenant is prohibited by law and there is a person or authority who is empowered to remove the tenant from the premises.
In many cases where there has been a failure to comply with building requirements, that will not be the case. The most common situation where occupation of the premises is prohibited is where resource consent to use the premises for residential purposes is required and has not been obtained.
The documents provided by the landlord indicate that in addition to various building requirements, the conversion requires resource consent. But looking at the Council’s website it appears that provided the building meets certain requirements it can be converted to a Minor Residential Unit without resource consent. What I am lacking is an explanation for why the unit does not meet the requirements. Possibly, it does.
I would prefer to have more information before I accepted that the unit needs resource consent but going by the documents I have seen, I accept that it does.
That being so, and there being no resource consent, I accept that the unit could not lawfully be occupied by the tenants for residential purposes.
The unit is not the premises, it is part of the premises, but the Act defines premises as including part of the premises. The unit is also a substantial part of the premises. There is evidence that if it were to be rented separately, the rent for it would be $300 per week.
[Tenant 3] occupied the unit and lived there separately from the house. There was no evidence from him and there was no evidence that he was in any way dissatisfied with living there.
In all the circumstances I am not minded to order any repayment of rent in this case. The landlord has failed to obtain the necessary consents for the conversion, and she is now in the process of obtaining them. There is no evidence of any harm done to the tenants. I therefore decline to make any order on this claim. Damp and Mould
There is no dispute that there was a serious problem of damp and mould in the house during the winter months of the tenancy. The question is, was it the result of any breach of obligation by the landlord?
There is no evidence of a specific cause of the problem. No leak was found or other source of water ingress or accumulation that could cause the problem.
What we do know is that even with two humidifiers, the heat pump and other heaters going, the premises were cold and damp and there was an extreme accumulation of mould in the premises.
We also know that there was no ground vapour barrier on the ground and no insulation under the floor. The house had single glazing and no wall insulation. But none of that was required and therefore their absence is not a breach of any landlord obligation.
That leaves the requirement that the premises must be free of damp. Plainly that is not an absolute requirement. Dampness can occur without any fault on the landlord’s part or any defect of the premises. In my view, for damp to be sheeted to the landlord, there must at least be something inherent in the premises that gives rise to the dampness.
The fact that the landlord used two dehumidifiers in the premises during the winter months and provided them to the tenants tends to indicate that there was an inherent problem of damp. Even in an older house in New Zealand, there should be no need for dehumidifiers assuming that the occupiers take reasonable care to ventilate the house. There is no evidence that the tenants in this case failed to do so.
The evidence overall indicates to me that the premises were not free of damp and that the reason for that, at least to some extent, lies with the nature of the house. If it were otherwise, tenants living in the house properly heating it, adequately ventilating it and using a dehumidifier should not experience the extreme degree of mould that these tenants experienced.
This is therefore one of the few cases where, in my view, the general requirement that the premises must be free of dampness has been infringed and the landlord should be held liable for the consequences. That is so even without any obvious cause for the dampness being identified.
The landlord suggested that the problem might lie with the drain that was found to be obstructed resulting in water finding its way under the house. But there is no evidence that it occurred during the tenancy. In any case, that is something that, in my view, could reasonably be laid at the landlord’s door because the penetrations should have been sealed to prevent that happening. The drain could become blocked without the tenants’ knowledge.
I do not think that the case meets the threshold for an award of exemplary damages. If there has been an unlawful act, which itself is debatable, it was not intentional. It is the result of circumstances that the landlord was not fully aware of.
But there has been a breach and I find that there should be an award of compensation. I must consider the effect of the situation on the tenants’ ability to live comfortably in the premises, the damage to their belongings and their seemingly high power bills. I must also take into consideration the $600 rent credit. An award in the sum of $1,400 is appropriate. Landlord’s Application
The landlord’s application is misconceived. Section 48 of the Act entitles the landlord to enter the premises in certain circumstances. Section 48(4)(b) makes it an unlawful act for the tenant to fail without reasonable excuse to allow the landlord entry when the landlord is entitled to enter.
Where the landlord asks to enter and the tenant refuses, the landlord has no right to enter otherwise than under s48. That applies regardless of how reasonable the landlord’s request may be. In this case, the landlord had no right to enter when the tenant refused entry. The landlord could have served a notice under s48 and, if the reason for entry was valid, the tenant would be obliged to allow entry unless they had a reasonable excuse. But there was no notice and so there can be no unlawful act. Filing Fee
The tenants have had significant success and so I have awarded them the filing fee. Suppression
For the same reason I have granted the tenants name suppression. There is no reason to grant the landlord name suppression.

Tenancy Tribunal case 4721069 — Smoke alarms

At a glance

Tenancy Tribunal case 4721069 — Smoke alarms

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