What was Tenancy Tribunal case 4729664 about?

The tribunal order states: must pay immediately, calculated as shown in

How much money was awarded in case 4729664?

Cleaning: $300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4729664?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4729664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461612-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4729664 about?

The tribunal order states: must pay immediately, calculated as shown in

How much money was awarded in case 4729664?

Cleaning: $300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4729664?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4729664?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461612-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4729664 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4729664 — net $820.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: cleaning/pest control	$300.00	cleaning/pest control
Compensation: repair/maintenance	$500.00	repair/maintenance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$820.44
Total payable by Landlord to Tenant	$820.44

Both parties attended the hearing. Mr Duffett and Ms Gao appeared on behalf of the landlord.

This tenancy began on 12 April 2022 and was initially for a fixed term, and ended on 1 October 2023. The rent is $1,050.00 per week and a bond of $4,200.00 was paid. The tenants have applied to the Tribunal for compensation of $80,850.00, being the rent paid for the duration of the tenancy, and exemplary damages. They claim breaches of the landlord’s obligations under RTA and the Healthy Homes Standards, noting the following: • The presence of mould in the premises • Breaches of the obligation to repair and maintain the premises • Failure to repair known defects prior to the tenants moving in • Lack of accurate records in the initial pre-let inspection report • The premises being unclean at the start of the tenancy • Infestation of insects • Rent rebate refused at the start of the tenancy

The repair issues are as follows: • Electrical problems with wiring, including power short-circuiting • Rangehood not working • Lights in the upstairs bathroom not working • Gas cooktop not working • Garage side door not locking • Problems with the shower head in the upstairs bathroom • Water leaking through the upstairs bedroom wardrobe

The tenants claim the premises does not comply with the Healthy Homes Standard (HHS) in relation to: • Ventilation • Draught stopping • Heating • Drainage • Insulation The tenants consider that, as a result of the above breaches under the HHS, the premises is mouldy.

Other claims include: • Rent increase without notice • Premises being advertised after the end of the tenancy for an additional $130.00 per week without mould issues being addressed.

The tenants have provided detailed submissions and evidence in support. The landlord has also produced supporting evidence at the hearing.

The tenants have confirmed receiving the bond following the end of the tenancy. General principles

In this jurisdiction, it is the party making the claim (in this case, the tenants) who have the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means that the tenants must establish with evidence that their claim is “more likely than not.” For the Tribunal to find in their favour, the tenants must be able to show that the landlord has been in breach of a legal obligation.

In the context of this application, the Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must take into account the following factors when deciding to award compensation: • The nature of the breach • The duration of the breach; and • The effect of the breach on the party.

Exemplary damages are different. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.

In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person (b) The effect of the unlawful act; (c)The interests of the party against whom the unlawful act was committed; and (d)The public interest. Maintenance: plumbing and electrical issues

In relation to the alleged failures by the landlord regarding its repair and maintenance obligations, the following has been identified: • Problems with the shower head in the upstairs bathroom • Water leaking through the upstairs bedroom wardrobe • Electrical problems with wiring, including power short-circuiting • Rangehood not working • Lights in the upstairs bathroom not working • Gas cooktop not working • Garage side door not locking

The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with the healthy homes standards, and any relevant enactment in relation to buildings, health, and safety.

The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ... the obligation of the landlord, under s.45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be. 4 Analysis

In the present case the tenants must be able to prove, on the balance of probabilities, that the premises was not in a reasonable state of repair, and that the landlord had notice of the problem and failed to repair within a reasonable time.

In relation to the issue of the faulty shower head in the upstairs bathroom, the tenants’ evidence is that this issue was raised five times with the landlord, between 25 November 2022 and 23 January 2023. It was only after the fifth request that this issue was resolved, which would appear to be an unreasonable time frame. The landlord’s invoice shows the shower head was replaced by the plumber on 25 January 2023.

The water leak in the upstairs bedroom wardrobe arose near the end of the tenancy, in September 2023. The tenants accept they may not have alerted the landlord in writing about the problem, but say there was a leak, on one occasion, when there was heavy rain. The tenants note the photographs show the leak. In response the landlord states there was no photographic evidence of the leaks in the bedroom and no record of a request to repair. In this case, any claim relating to this issue has not been established. 1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d) 4 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085

In terms of the electrical issues, the tenants’ evidence is that, as a result of the wires short-circuiting on 20 July 2023, they were without power on the left side of the house for 24 hours. In this case, the landlord promptly arranged for an electrician to attend, the work was carried out the following day, and an invoice from the electrician has been provided. There was an earlier incident in April 2023, for which the landlord has provided an invoice where a faulty circuit breaker was replaced.

The issue with the kitchen rangehood not working at the start of the tenancy was raised in an email on 15 April 2022, and a new rangehood was installed on 29 April 2022. Other work was undertaken then, including replacement of lights in the kitchen and bathroom, repairing the heat pump and power points in the living room. The tenants note that the pre-inspection report showed that the lights were not working, and this issue ought to have been resolved before they moved in.

In terms of the electrical issues identified, I find that, on the whole, the landlord has made reasonable efforts to resolve them. The relevant invoices have been provided. Understandably, the tenants are disappointed that these problems, some of which were noted in the initial inspection report, were not dealt with before they moved in. The tenants have been inconvenienced, and are to be awarded some compensation for the resulting effect of these repairs not being completed before they moved in.

The tenants’ evidence is that the gas stove elements were not functioning properly, and the landlord was notified of this problem on 26 April 2022. It appears a gas fitter did attend promptly, but the issue was not resolved until further work was undertaken on 27 June 2022. In view of the importance of having a functioning stove, I agree that this issue ought to have been resolved earlier.

The tenants state the upstairs hallway door had come off its hinges, this was noted in the inspection report and reported to the landlord. It seems, from the landlord’s explanation, there was some misunderstanding as to whether this had been resolved when a tradesperson attended.

Overall, having regard to the nature and duration of the various issues, the resulting effect for the tenants, the amount of $500.00 is awarded in compensation.

The tenants have raised other points, including concerns that the landlord’s inspection report was inaccurate. This view is noted, along with the landlord’s explanation. Exemplary damages

Where a landlord has breached any of their obligations under section 45 of the Residential Tenancies Act 1986, exemplary damages may be awarded. It must be shown that a party has committed an unlawful act intentionally, and the Tribunal must be satisfied that it would be just to make the award, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. 5

Applying the statutory test, and noting the principles set out in Birch v Otautahi Community Housing Trust (above) I consider there to be insufficient evidence of intent in this case for the Tribunal to award exemplary damages, since it has not been shown that the landlord deliberately turned its mind to the unlawful act and set out to commit it. Healthy Homes Standards

The tenants allege breaches by the landlord under the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS). Section 45(1)(bb) of the RTA requires the landlord to comply with these standards. The tenants have raised issues regarding compliance with the following: • Heating • Draught stopping • Ventilation • Drainage • Insulation

The tenants consider that, as a result of the above breaches under the HHS, the premises is mouldy. Most of the tenants’ concerns relate to the downstairs area of the premises.

Compliance dates for the HHS vary depending on the tenancy: • 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. • All boarding houses must comply by 1 July 2021. 5 Section 109(3) of the RTA • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024. Heating

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. 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 tenants raised concerns about the heating in the premises.

The landlord has provided a copy of the Healthy Homes Standards Report completed by [healthy homes assessor] following an assessment on 11 February 2021. This report shows the property did not pass the heating and draught stopping standards. Since the report was completed, the landlord’s evidence is that a heat pump was installed, as evidenced by the relevant invoice dated 6 August 2021. So, the premises had a compliant heat pump in the upstairs lounge. The downstairs area is designated as a rumpus room, and therefore, there was no requirement to provide heating, although there was a wall panel heater. The landlord produced a copy of the LIM report for the premises.

In this case, no breach under the HHS heating standard has been established. Ventilation

The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded.

The evidence and submissions of both parties has been taken into account. The tenants’ concerns regarding the ventilation is noted. They consider the ventilation standard is not met, since there is no ventilation in the downstairs lounge area. The landlord notes that this area is designated as a rumpus, rather than a lounge and therefore, an exemption applies under Regulation 22 of the HHS Regulations.

Regulation 22 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 provides an exemption for compliance with Regulation 21 (which requires each habitable space to have one or more qualifying window or door) for rooms lawfully built without qualifying windows or doors. In this case, the premises was constructed in the late 1950’s. A permit from the council was issued on 1 October 1958. While the LIM report shows a consent was obtained to develop the downstairs area, the landlord has explained that this work did not go ahead.

The [healthy homes assessor] report obtained by the landlord shows that the premises is compliant with the HHS ventilation standard. No issues regarding the ventilation in the downstairs area was identified. While the tenants consider the ventilation standard is not met, in the absence of persuasive evidence to the contrary, from an independent source, the findings in [healthy homes assessor] report are accepted. Therefore, this claim is dismissed. Draughts

The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The HHS does provide exemptions in specific circumstances.

The [healthy homes assessor] report identified that the premises did not meet the HHS draught stopping standard. The landlord has noted these areas to be the upstairs window joinery, which was then remedied by installing draught-stopping tape. An invoice for this work was provided. The report did not raise issues with the downstairs area. Again, it seems the issues identified in the HHS report were subsequently remedied. So, it would appears the HHS draught stopping standard is met, and no breach under this standard has been established. Moisture ingress and drainage

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 HHS does provide exemptions in specific circumstances.

The [healthy homes assessor] report concluded that the premises complied with the HHS in relation to drainage and moisture. The areas assessed included the spouting, downpipe, ground surface water, and the moisture level in the subfloor. Again, while the tenants have their own concerns, the independent evaluation is preferred and therefore, a breach under this standard has not been established.

The tenants have noted drainage issues that relate to the maintenance of the drains. There is some conflicting evidence about whether these issues were reported to the landlord, and therefore, no further findings can be made in terms of any potential breach. Insulation

[The tenant/s] claim that the landlord has breached the obligation to insulate the premises to the necessary standard. The landlord’s obligations are set out under section 45(1)(bb) of the RTA which requires that the premises be insulated 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. 6

The landlord’s evidence is that the house is compliant with the RTA and the Regulations concerning insulation. The [heathy homes assessor] report addresses the insulation requirements and concludes that the ceiling and underfloor insulation are compliant. In view of the evidence provided by the landlord, I find that the tenants have been unable to show that the landlord has breached the obligation to insulate the premises to the necessary standard. Therefore, this claim is dismissed. Mould

The tenants claim there is mould in the downstairs area of the premises. As noted by the Tribunal in Semmens v Wadman, 7 mould is commonly present throughout all residential dwellings in New Zealand to some degree. Adjudicator Woodhouse explained that simply having mould in the premises would not be sufficient to 6 section 45 (1)(A) and Schedule 1A of the RTA. 7 [2022] NZTT Manukau 310605 establish a breach on the part of the landlord for which compensation can be ordered: Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.

The tenants state they notified the landlord about the mould in the downstairs area on 16 June 2023, during an inspection. They requested a dehumidifier from the landlord, but never received one. As no support was provided by the landlord, they continued to actively look for a new home and gave notice at the end of August 2023.

From the evidence provided at the hearing, it is unclear whether the mould noted on the furniture, clothing and other items was the result of any defects in the property. The evidence does not establish any link to the leaks reported by the tenants. There is also the landlord’s evidence which supports the finding that the house was compliant with the HHS. The inspection report of 16 June 2023 notes the tenants’ report of mould in the downstairs area. However, it was also recorded that “there are no visible signs of mould.”

The fact that there was some mould in the house is not enough to show that the premises was not in a reasonable state of repair, and the opinion of unqualified persons is often not persuasive: Repia v Walsh Trust. 8 In this case, the tenant’s photographic evidence of mould is noted. However, as the cases referred to above have observed, the presence of mould, in itself, is insufficient to establish a breach on the part of the landlord. As previously stated, it is for the party who alleges the breach to establish or prove it, on the balance of probabilities. In this case, the tenants have been unable to do so, with sufficient supporting evidence, and therefore, this claim fails to meet the required standard. Accordingly, the claim for compensation arising from mould is dismissed. Condition of the premises at the start of the tenancy

The tenants claim that the premises was not reasonably clean and tidy at the start of the tenancy. They state they spent additional time cleaning after moving in. They also had to do some pest control to deal with the infestation of insects (cockroaches, ants and crickets). The landlord accepts that further cleaning was required, and offered $120.00 rent rebate. There is also acknowledgment that the house was vacant for two months before the tenants moved in, and some further work may have been needed. 8 DC Waitakere, CIV-2011-090-00056, 27 April 2011

Under the Residential Tenancies Act 1986 (the RTA) landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness: see Section 45(1)(a) of the RTA.

The landlord has produced an invoice to show that cleaning was completed, but this was done on 16 February 2022, two months before the tenants moved in. There is no evidence of any additional cleaning being arranged. While the landlord offered some compensation to the tenants, I consider they ought to receive additional compensation for the cleaning and pest control they had to undertake. Based on the limited photographic evidence of the areas needing cleaning, and noting the tenants’ oral evidence, I consider the amount of $300.00 to be a reasonable level of compensation for the cleaning and pest control.

I do not consider there to be any specific breach on the part of the landlord to decline the request for a rent rebate. Other issues

In relation to the issue of the garage side door not locking, I find the tenant’s own written statement of the landlord repairing it quickly once alerted shows that there is no breach by the landlord. However, the tenants do note that the pre-let inspection report indicated that the garage access door was in good condition (when it was not).

The proposed rent increase did not eventuate and therefore, there has been no loss to the tenants as a result of the claimed rent increase without notice.

The tenants’ claim about the premises being advertised after the end of their tenancy, for an additional $130.00 per week without mould issues being addressed has been considered. However, this is not a matter that relates to this tenancy and therefore, cannot be determined as part of this application. Filing fee

Because the tenants have established some of their claims, the landlord is to pay the tenants’ filing fee. Name suppression

An application for suppression has been made in this case by the tenants only, and the Tribunal orders suppression of the tenants’ names and identifying details, in view of the tenants having established some of their claims.

Reasons

Claims and awards in Tenancy Tribunal application 4729664 — net $820.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: cleaning/pest control	$300.00	cleaning/pest control
Compensation: repair/maintenance	$500.00	repair/maintenance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$820.44
Total payable by Landlord to Tenant	$820.44