What was Tenancy Tribunal case 4723290 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ names and identifying details.

How much money was awarded in case 4723290?

Compensation: dampness and healthy h…: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4723290?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4723290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10800145-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4723290 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ names and identifying details.

How much money was awarded in case 4723290?

Compensation: dampness and healthy h…: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4723290?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4723290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10800145-Tribunal_Order_Redacted.pdf.

6 Hansen place, Katikati, Katikati 3129 Tenancy Tribunal Case 4723290 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4723290 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: retaliatory notice	$2,000.00	retaliatory notice
Compensation: dampness and healthy homes standards	$2,000.00	dampness and healthy homes standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Both parties attended the hearing.

The tenants applied for exemplary damages for the bond not being lodged, compensation of $10,000.00 for dampness and mould issues, and orders relating to a retaliatory notice. The claim relating to the bond was withdrawn, as the bond was lodged but recorded against the wrong address.

The tenants have referred to other issues in their application, such as alleged breach of quiet enjoyment when healthy homes work was carried out on 9 February 2024. However, the claim was not amended prior to the final hearing and, given the length of time that has elapsed since the application was filed, it was not appropriate to adjourn the hearing for further amendments to be made. Background

The tenancy started on 21 February 2022.

On 16 June 2023, Sustainability Options carried out a healthy homes assessment of the premises at the request of the tenants’ doctor. The report noted: a. Although there were electric heaters supplied, they were unlikely to comply with the heating standard. b. The ceiling insulation was not compliant, as it was only 50mm thick in places (the requirement was for R2.9 or 120mm). c. The kitchen ventilation was not complaint as it was not externally vented. The bathroom extractor was not working. d. The moisture standard was not met as there was no ground moisture barrier. e. Although some windows had been replaced with double glazing, new window latches were required on other windows to enable them to be shut securely to eliminate draughts.

The assessment noted that compliance with the standard would improve the warmth of the house and reduce moisture.

In October 2023, a text message exchange occurred between the tenants and the landlord’s daughter about cleaning and painting the areas affected by mould. The tenants referred to the healthy homes standards and the need for a specific type of paint for treating mould. In the course of the exchange, the landlord’s daughter queried whether the house was the “right rental” for them and their family.

Shortly afterwards, on 24 October 2023, the landlord gave the tenants notice for the tenancy to end on 27 January 2024. The grounds for the notice were that extensive refurbishment was to be carried out.

On 26 October 2023, the tenants made their application to the Tribunal.

On 13 December 2023, the Tribunal declared that the termination notice was of no effect. The Tribunal adjourned the applications for exemplary damages (including for the retaliatory notice) and compensation.

On 9 February 2024, contractors installed a moisture barrier under the house and additional insulation in the ceiling.

On 14 February, the landlord gave the tenants a 63-day termination notice for the tenancy to end on 17 April. The grounds for the notice were that the landlord was moving back in. This notice came a few days after an acrimonious exchange of emails regarding the work done on 9 February and the fact that the landlord went through the house after the work was done.

On 9 March, the tenants gave notice to vacate on 30 March. The parties agreed on a division of the bond to cover cleaning and repair issues. Retaliatory notice

Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.

Giving a termination notice which is declared to be retaliatory is an unlawful act. The Tribunal may award exemplary damages, up to a maximum of $6,500.00, where the unlawful act is intentional, and it is satisfied it would be just to do so. Relevant factors are the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (s 54(2), (3), 109(3), and Schedule 1A RTA).

In the decision dated 13 December, the Tribunal made a finding that the notice did not comply with s 51(2)(f) RTA as the landlord had not established that extensive refurbishment would be carried out. The Tribunal found that the landlord gave the notice because the tenants had pursued the issue of mould at the premises, and because he wanted them gone.

The tenants referred to the second notice given on 14 February. They say the landlord has not moved in, and someone else’s vehicle is parked at the house. The landlord says that he did intend to move back in but has been prevented from doing so by health issues. He says someone he knows is living there off and on and parks their car there so that it looks occupied. He also said he gave the notice because the tenants have damaged the home and he wanted them out. If that was the case, then he could have applied to the Tribunal for termination. In my view, wanting the tenants out was the primary motivation behind the notice.

The second notice represents a separate incident which is not strictly covered by the claim. However, the landlord’s reasons for giving the second notice reinforce the view that he does not follow the proper processes under the RTA.

The landlord says he did not intentionally give a retaliatory notice and it would not be just to order exemplary damages. I disagree. The act of giving notice was intentional and the Tribunal previously has found that in giving the notice the landlord was at least partially motivated by the tenants exercising their rights. I cannot go behind the finding already made by the Tribunal, but in any event agree with it.

The maximum penalty of $6,500.00 reflects the seriousness of terminating a tenancy rather than dealing with the tenants’ complaint. The landlord says he could not deal with the mould issue while the tenants were still in the house. However, he has provided no supporting evidence that it would not have been reasonably practicable to treat the mould while the tenants were still in occupation.

A common starting point, for a first incident, is one-third of the maximum. I accept that the notice would have been stressful for the tenants, and they were obviously entitled to have their complaint dealt with appropriately rather than their tenancy terminated. There is little in the way of mitigation. Although the landlord expressed concern about damage and the house going ‘backwards’, there were proper avenues to address any legitimate concerns, rather than taking an unlawful shortcut. In all the circumstances an award of $2,000.00 is appropriate, which is just under one-third of the maximum. Building requirements and healthy homes standards

Under section 45(1) RTA, a landlord must: a. provide and maintain the premises in a reasonable state of repair (subs (b). b. comply with healthy homes standards (HHS) (subs (bb) c. comply with any relevant enactment in relation to buildings, health, and safety (subs (c). This includes reg 15 of the Housing Improvement Regulations 1947, which provides that every house shall be free from dampness.

The HHS provide for a number of requirements: a. All residential premises must be insulated to a minimum standard. The minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and the minimum R-value for underfloor insulation is 1.3. The insulation must be in reasonable condition. b. The heating standard requires landlords to provide a ‘qualifying heater’ in the living room with a capacity to heat the room to a required level. c. The ventilation standard sets out minimum expectations around openable windows and doors. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. d. The draught stopping 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. e. The moisture ingress and drainage standard requires buildings to have efficient drainage systems and a ground moisture barrier where there is an enclosed subfloor space.

Did the landlord fail to comply with the HHS?

If the tenancy commenced after 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of the tenancy. Because the tenancy started on 21 February 2022, the landlord had to comply with the HHS by 21 May 2021.

It is clear from the report provided by Sustainability Options that the landlord breached the HHS in relation to heating, ceiling insulation, kitchen and bathroom ventilation, a ground moisture barrier, and draught stopping.

The landlord has filed a document highly critical of the Tribunal’s earlier decision about the retaliatory notice. Much of his criticism centred on his belief that he had until 1 July 2025 to comply with HHS. Obviously that belief was mistaken, and his ignorance of the law is no defence. Did failure to comply with healthy homes standards contribute to dampness and mould?

The tenants say mould grew within a month of moving in. They say the landlord provided a dehumidifier and was therefore aware of the issue. They bought their own heater to supplement the poorly performing panel heaters. They say they regularly opened windows between 7:00 and 9:00am and wiped surfaces. They moved out of the master bedroom, which is on the south side and receives little or no winter sun, and into the living room.

The landlord says the dampness and mould was caused by the tenants sleeping on mattresses on the floor, failing to wipe moisture from windows, and failing to open windows to ventilate. He says there were no complaints from previous tenants, and he has installed double glazing in the bedrooms.

The landlord provided a reference from a previous tenant stating the house was not excessively mouldy. The former tenant says window frames got mould around them in winter “like every house in New Zealand”. She said she lost two DVD holders due to mould in the main bedroom, but claimed this was her fault as she had boxes stored in the wardrobe and did not properly air it out. She said she found the house reasonably warm and dry, and that she still gets mould in her current house even though it is sunny and has an HRV. A letter from the landlord’s cleaner confirmed there were no mould issues when the previous tenant vacated.

The landlord also proved a statement from a builder who inspected the property. He found signs of mould around windows, particularly in the back bedroom which was double-glazed. He said the tenants closed the window at night, which would cause condensation to build up. He also noticed bedding and clothes on the floor. There was mould in the silicone sealant in the kitchen, which he attributed to benches being left wet too often. He found mould in a wardrobe that did not have external insulation. He concluded that the mould was due to lack of ventilation, which would be resolved by opening windows and wiping water off surfaces. He also recommended lifting mattresses off the floor to allow airflow.

Claims involving dampness can be difficult to resolve. There is often no direct evidence of the contributing factors, and the Tribunal must draw inferences from whatever indirect evidence is available.

It is likely that both parties contributed to the issue of dampness and mould. The house is relatively small, and the tenants had one or two boarders staying at times during the tenancy, which would have added to the moisture generated inside the house. Having mattresses on the floor would have restricted airflow and led to moisture build up, even if the tenants did lift them during the day. I also accept the landlord’s evidence that the tenants did not always open windows and air the house as early as they claimed.

On the other hand, the evidence from the former tenant confirms that the master bedroom was susceptible to dampness and mould. More importantly, the report from Sustainability Options stresses the importance of complying with the HHS to help keep the house warm and dry. It is particularly relevant that there were no extractor fans working in the kitchen and bathroom.

In conclusion, I find that the landlord was at least partially responsible for dampness and mould in the house, and that his failure to comply with the HHS was a significant factor.

Is the amount claimed proved?

The tenants did not apply for exemplary damages for breach of the HHS. Had they done so, the landlord could have faced significant penalties.

Instead, they have claimed compensation of $10,000.00 comprised of $1,099.00 for damage to drawers, $4,000.00 for damaged clothes, $2,000.00 for a damaged bed, and $2,901.00 for stress and inconvenience.

The tenants provided photos of mould on walls and windowsills, mouldy silicone in the kitchen, mould on items of clothing, mould on a mattress and bedding, and mould on the back of a set of drawers.

The only claim supported by evidence of value is for the drawers. However, although they have provided a photo of the back of the drawers, this falls short of proving the drawers were damaged beyond repair. With hard furnishings it may be possible to remove any mould and mould spores with a bleach solution or other suitable cleaning product. There is also a duty to mitigate loss by dealing with mould build up before it causes permanent damage.

In relation to the clothes, there is very limited supporting evidence, and again the issue of loss mitigation and cleaning applies.

There is strong photographic evidence of a mattress damaged by mould. However, having mattresses on the floor could have contributed to a moisture build up and consequent damage.

In summary, the claims for damage to specific items are not proved. However, I accept that the tenants were adversely affected by the landlord’s failure to comply with the HHS and the consequences this had for conditions inside the house. The landlord did not start addressing issues raised in the HHS report until after the first Tribunal hearing, so the tenants spent two winters in a non- compliant house. However, I also need to take into account the contributing and mitigating factors discussed. Taking all these considerations into account, I find that an award of $2,000.00 is appropriate.

Although the compensation ordered falls well short of the amount claimed, the tenants were fully successful the retaliatory notice and partially successful with the compensation claim. Therefore, I have ordered name suppression. For the same reason I have reimbursed their filing fee. J P Smith 03 September 2024

Reasons

Claims and awards in Tenancy Tribunal application 4723290 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: retaliatory notice	$2,000.00	retaliatory notice
Compensation: dampness and healthy homes standards	$2,000.00	dampness and healthy homes standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Both parties attended the hearing.

The tenancy started on 21 February 2022.

The assessment noted that compliance with the standard would improve the warmth of the house and reduce moisture.

On 26 October 2023, the tenants made their application to the Tribunal.

On 9 February 2024, contractors installed a moisture barrier under the house and additional insulation in the ceiling.

On 9 March, the tenants gave notice to vacate on 30 March. The parties agreed on a division of the bond to cover cleaning and repair issues. Retaliatory notice

Did the landlord fail to comply with the HHS?

In conclusion, I find that the landlord was at least partially responsible for dampness and mould in the house, and that his failure to comply with the HHS was a significant factor.

Is the amount claimed proved?

The tenants did not apply for exemplary damages for breach of the HHS. Had they done so, the landlord could have faced significant penalties.

The tenants provided photos of mould on walls and windowsills, mouldy silicone in the kitchen, mould on items of clothing, mould on a mattress and bedding, and mould on the back of a set of drawers.

In relation to the clothes, there is very limited supporting evidence, and again the issue of loss mitigation and cleaning applies.

There is strong photographic evidence of a mattress damaged by mould. However, having mattresses on the floor could have contributed to a moisture build up and consequent damage.

Tenancy Tribunal case 4723290 — Exemplary damages at 6 Hansen place, Katikati, Katikati 3129

At a glance

Tenancy Tribunal case 4723290 — Exemplary damages at 6 Hansen place, Katikati, Katikati 3129

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to comply with the HHS?

Is the amount claimed proved?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to comply with the HHS?

Is the amount claimed proved?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions