What was Tenancy Tribunal case 4733941 about?

The tribunal order states: Makahu Sparks must pay [The tenant/s] $4,942.93 immediately, calculated as

How much money was awarded in case 4733941?

Compensation: giving a notice not en…: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; November 2023: $4,457.00 awarded to tenant; Water Rates: $34.51 awarded to landlord

What type of tenancy dispute was case 4733941?

The dispute type was not classified.

Where can I read the official tribunal order for case 4733941?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794002-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4733941 about?

The tribunal order states: Makahu Sparks must pay [The tenant/s] $4,942.93 immediately, calculated as

How much money was awarded in case 4733941?

Compensation: giving a notice not en…: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; November 2023: $4,457.00 awarded to tenant; Water Rates: $34.51 awarded to landlord

What type of tenancy dispute was case 4733941?

The dispute type was not classified.

Where can I read the official tribunal order for case 4733941?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794002-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4733941 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4733941 — net $4,942.93 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates: July to 28 September 2023	$34.51		Water rates: July to 28 September 2023
November 2023		$4,457.00	November 2023
Compensation: giving a notice not entitled to give		$500.00	giving a notice not entitled to give
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$34.51	$4,977.44
Net award		$4,942.93
Total payable by Landlord to Tenant		$4,942.93

Claims and awards in Tenancy Tribunal application 4733941 — net $4,942.93 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates: July to 28 September 2023	$34.51		Water rates: July to 28 September 2023
November 2023		$4,457.00	November 2023
Compensation: giving a notice not entitled to give		$500.00	giving a notice not entitled to give
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$34.51	$4,977.44
Net award		$4,942.93
Total payable by Landlord to Tenant		$4,942.93

Order

Makahu Sparks must pay [The tenant/s] $4,942.93 immediately, calculated as shown in table below:
The remainder of the tenants’ claims are dismissed.
The remainder of the landlord’s claims are dismissed.

Reasons

Both parties attended the hearing. I allowed the tenants to have a representative.
The tenants and the landlord signed a fixed term tenancy agreement in January 2023. Ever since they moved in they have had maintenance issues. They had their first child during the tenancy and were concerned about the house being draughty and cold. They have filed their application for compensation because they are not sure the house complies with the Healthy Homes Standards, and because the landlord has taken too long to carry out repairs. They are also questioning whether a notice to terminate the tenancy was retaliatory. The landlord has also filed an application for water rates and some plumbing bills. The questions I have to decide are: • Did the landlord breach the duty to repair and maintain? • Did the landlord breach the duty to meet the Healthy Homes Standards (HHS)? • Should the tenants get compensation? • Did the landlord give a valid notice? • Should the tenants pay water rates? • Should the tenants pay the plumbing bills?

Did the landlord breach the duty to repair and maintain?

The tenants claim that the landlord has breached his obligations under section 45 of the Residential Tenancies Act 1986 (RTA). Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of smoke alarms.
The tenants have not proved the claim for the gate because the landlord did not know the gate blew over in a storm. The tenants have not proved the landlord knew about the issues with the drains and that he failed to arrange repairs. These claims are dismissed.
The tenants said the landlord failed to provide the ranch slider in a reasonable condition. The ranch slider is one of two external doors and it cannot be opened without great strength and lifting to door to move it along the track. The tenant at home most days cannot open this door on her own. The sliding door was like this at the start of the tenancy. The landlord could not remember if he checked the door because he did not complete an ingoing inspection. The tenants served a 14 day notice requiring repairs to the door on 26 October 2023. The person who attended the house in November said repairs were not possible and the whole door has to be replaced. I find the tenants have proved the ranch slider was not provided in a reasonable condition and it seems most likely to me the landlord knew about the problem. I find this was a breach of the landlord’s duty to repair and maintain.
The tenants advised the landlord two days after they moved in that there were broken switches. The landlord replied that he would not be repairing anything “unless it’s absolutely necessary” because he had used all his money to repair a fence before the tenants moved in and “what you see is what you get with the place”. There was also an exposed wire by a ceiling light fitting that the tenants did not tell the landlord about. I note the handyman who went to install the extractor fan in November left the job for the electricians because the switch on the wall in the bathroom had exposed wires. I find the tenants have proved the landlord breached the duty to repair and I find the landlord would have known about the problem had he made proper enquiries and/or inspected the tenancy premises.
I note the tenants also had genuine problems with the dishwasher during the tenancy but the landlord was reluctant to spend money and the five weeks he took to arrange repairs was not reasonable.
Section 45(1)(ba) of the RTA requires that landlords comply with all requirements in relation to smoke alarms made under section 138A. The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, which require landlords to have qualifying smoke alarms installed and operational.
Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping spaces, and in each level of a multi-level dwelling. The landlord did not keep good records about the installation of smoke alarms but it seems likely he had not installed a smoke alarm outside the bedrooms. He arranged for new photoelectric smoke alarms to be installed after he received the 14 day notice. It is the landlord’s job to check the installation of smoke alarms is correct and that they are working. It seems most likely to me this was not done at the start of the tenancy, which is another breach by the landlord. Did the landlord breach the duty to meet the Healthy Homes Standards (HHS)?
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The compliance date for this tenancy was 9 May 2023 (120 days after the new tenancy started).
The tenants consider that the landlord has failed to comply with the HHS ventilation standard. This is because the extractor fan in the bathroom did not work during the tenancy. The ventilation standard requires that each bathroom have extractor fans installed with a minimum defined extraction capacity.
From the evidence provided it seems most likely to me the landlord completed the HHS statement provided in the tenancy agreement without actually testing the extractor fan. I find this because there was evidence the fan had never worked for the previous tenant. A new fan was installed in November after the tenants served the 14 day notices. It is still not clear from the information provided by the electrician if the new fan meets the HHS requirements. This is because there is a comment on the invoice that the “old existing ducting is too small ... affecting the working of the fan”. I am persuaded by the tenants’ evidence that the landlord did not take the necessary steps to ensure his HHS statement was correct, nor to check the extractor fan was compliant. I find this was a breach by the landlord.
The tenants also claim that the landlord has failed to comply with the HHS draught stopping standard. 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 tenants told the landlord the bathroom was draughty in May, and that the bedroom windows let in cold air in September. The landlord advised the tenants that he would not be getting any repairs done and that the house was “as is where is”. The tenants attempted to install draught stopping – which the landlord paid for – but the windows and the frames are so old and warped that installing foam has not solved the problem. There is also a draught around the french doors in the lounge.
The landlord has an obligation to block any obvious gaps at the start of the tenancy. The photos provided by the tenants show large gaps around the windows. It would have been obvious to the landlord that draughts would result. Once advised about the draughts the landlord did not take action. Instead, he reiterated his position on repairs, said he could not afford to do maintenance that was not urgent, and advised the tenants they could move out if the house did not suit them. This is a clear breach of the duty under the HHS.

Should the tenants get compensation?

The tenants have asked for compensation for the maintenance and HHS breaches in the amount of $100 per week. They have not applied for exemplary damages, which are like a penalty. I note I would have awarded exemplary damage for the breaches outlined above had the tenants asked for them, but that is not an option now. I am persuaded by the tenants’ submission that I should allow compensation. The tenants have suffered a loss of amenity because they have paid rent for a house without draught stopping, without a bathroom fan, and without the required smoke alarms. They have lived with a ranch slider they cannot use and with dangerous electrical wiring. Not only that, they have had to battle with the landlord every time they needed maintenance so there has been stress and inconvenience as well. The $100 a week seems reasonable to me. It is allowed to 17 November 2023 because almost all the issues raised in the 14 day notices were remedied by that date.

Did the landlord give a valid notice?

On 26 October 2023 the tenants served a number of 14 day notices on the landlord for maintenance and repairs. That same day the landlord replied saying “...I have decided I am not going to renew your contract for lease expiring 10 January as I am going to sell the property ...”. The landlord subsequently gave a second notice – which was accepted by the tenants – giving 90 days to end the tenancy because of selling the tenancy premises. The tenants believe the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. Given the timing of the termination notice I have no doubt the landlord decided to end the tenancy because of the 14 day notices. However, section 54 RTA only applies to notices which are valid notices under section 51 RTA. This means I am required to consider if the 90 day notice is a valid notice.
The reason for the notice to end the tenancy is set out in section 51(2)(a) RTA - that the tenancy premises are to be put on the market for sale by the owner within 90 days of the tenancy ending. The only supporting information I have is details of the purchase, which the landlord said is significant because it shows he can sell the house from February 2024 and not incur tax because of the bright line rules. However I am not persuaded the house will be sold. Usually landlord’s provide copies of appraisals, or sales agreement with real estate agents, or even emails with an agent over the best time to sell, and I have none of that here. It seems most likely to me, because of the landlord’s attitude and the timing of his notice, that he is using the idea of a sale to get himself within section 51 and end the tenancy.
I find the landlord has not given a valid notice. This means the notice is of no effect. The tenants can leave if they find a new tenancy, but they are not required to leave by 27 January 2023. The parties can also agree to end the tenancy at a date decided by consent.
I further find I should award compensation to the tenants for the stress and inconvenience of starting to look for other tenancies at Christmas time and for having to apply to the Tribunal for orders. $500 seems a fair amount to me.

Should the tenants pay for water rates?

The landlord has claimed the cost of two water rates invoices from earlier in the year. At the hearing I indicated that the landlord could not claim the invoices because he had not given a copy to the tenants. Since the hearing I have reconsidered the decision in of the District Court held in Woollams v Simpson (DC Auckland CIV-2005-004-1583, 16 March 2006), that there was an implied term in the tenancy agreement that the landlord would provide water accounts at regular intervals, and within a reasonable time, to enable payment to be made. The Court determined that, because the landlord had failed to do so, the tenant was only required to pay the last two accounts, which covered a period of just over four months.
Following the decision in Woollams I find the tenants should pay the second lot of water rates, which is $34.51 for the period from 3 July to 28 September 2023. The tenancy agreement makes it clear that water rates are the tenants’ responsibility. The claim for the water rates from March to July is dismissed because of the reasoning in Woollams.

Should the tenants pay the plumbing bills?

The landlord wants the tenants to pay for two plumbing bills because the call outs were unnecessary because the tenants’ hair was the cause of the problems. I am not persuaded by his submission. The tenants had problems with all of the plumbing during the tenancy, not just the shower. This was reported to the landlord.
The landlord called a plumber in May because the bathroom sink was filling up with brown liquid. The plumber’s invoice said the tenants were shown how to clear the waste in the bathroom sink. There is no mention of the tenants misusing the sink. The second plumber’s visit was in October because the toilet and the bath were not working properly. The plumber did remove hair. However, the invoice also records that the shower drains slowly if the pop up plug is in place and recommends that the toilet is replaced because of a build up of scale in the bottom of the toilet. The invoice does not mention any misuse by the tenants.
The landlord has not proved there was a breach by the tenants and the claim for the plumbing bills is dismissed. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenants’ application for suppression is allowed because they are the most successful party.
The landlord’s application for suppression is not allowed. He submitted that the publication of the Tribunal’s order with his name on it would be unduly prejudicial and could affect his ability to do his job. I was not provided with any supporting information about this. I find there is public interest in the landlord being named because the landlord has other rentals and because he breached both safety, HHS, and maintenance obligations. See section 95A RTA.

Tenancy Tribunal case 4733941 — Tenancy dispute

At a glance

Tenancy Tribunal case 4733941 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach the duty to repair and maintain?

Should the tenants get compensation?

Did the landlord give a valid notice?

Should the tenants pay for water rates?

Should the tenants pay the plumbing bills?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach the duty to repair and maintain?

Should the tenants get compensation?

Did the landlord give a valid notice?

Should the tenants pay for water rates?

Should the tenants pay the plumbing bills?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions