What was Tenancy Tribunal case 4735189 about?

The tribunal order states: Viaduct City Rentals Limited As Agent For Amit Lal must pay [The tenant/s]

How much money was awarded in case 4735189?

Compensation: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4735189?

The dispute type was not classified.

Where can I read the official tribunal order for case 4735189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10346097-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4735189 about?

The tribunal order states: Viaduct City Rentals Limited As Agent For Amit Lal must pay [The tenant/s]

How much money was awarded in case 4735189?

Compensation: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4735189?

The dispute type was not classified.

Where can I read the official tribunal order for case 4735189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10346097-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4735189 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4735189 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$600.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Total payable by Landlord to Tenant	$620.44

Both parties attended the hearing. Ms Gang appeared for the landlord.

As noted in an earlier order, this tenancy began on 7 September 2022 and came to an end on 17 August 2023. The rent is $430.00 per week and a bond of $1,720.00 was paid. The bond has since been refunded by the Bond Centre, with the landlord receiving $552.86 and the tenant receiving the remaining amount of $1,167.14. The parties signed a bond refund form agreeing to these amounts being paid.

The tenant has filed an application seeking compensation and exemplary damages for alleged breaches of the landlord’s obligations. The tenant seeks the return of the bond in full. She claims the landlord failed to address issues relating to a vent cover above the shower, which fell from the ceiling, and black soot coming from the hot water cylinder. She also claims there were delays in addressing problems with the toilet, which was not flushing, and the lock to the apartment, which was not functioning.

The tenant issued a 14-day notice to the landlord on 3 May 2023 regarding issues with the ventilation and hot water cylinder. The tenant considers that the premises does not comply with the Healthy Homes Standards in relation to ventilation.

At the hearing both parties provided evidence and submissions. The landlord agreed to supply a copy of the initial inspection report of the premises. A timetable for the exchange of final comments was advised to the parties. The landlord filed the inspection report, and the tenant provided her comments in response. General principles

In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish with evidence that their claim is “more likely than not.”

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. 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. The bond

In her application, the tenant recorded her concerns about the amount the landlord had deducted from the bond, noting delays in being able to return the keys to the landlord. The evidence provided by both parties does not further clarify the issue of whether the tenancy ended on a different date to that noted in the bond refund form. While the tenant feels there should not be any deduction from the bond, it is unclear, from the available evidence, whether she has overpaid rent. Therefore, in terms of this issue, the bond refund form, which both parties signed, is accepted. Therefore, no further order is made in terms of the tenant’s request for a full refund of the bond. Maintenance issues

The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (the RTA), in relation to the following: • Vent cover above the shower falling • Black soot from the hot water cylinder cupboard • Toilet not flushing • Lock to the apartment not functioning

The tenant has provided photographic, oral and documentary evidence regarding the issues identified. She submits there were delays in the landlord responding. She has detailed her attempts to contact the landlord and the responses received. She had telephoned and emailed multiple times.

The tenant states the toilet stopped flushing on 27 November 2022. She notified the landlord on 22 December 2022. She had to pour buckets of water into it for 7 weeks. The vent cover above the shower fell onto her. She was reluctant to use the shower until this was properly fixed and used the bath instead. There was soot coming from the hot water cylinder cupboard. She issued a 14-day notice about this on 3 May 2023. A tenancy compliance officer was contacted but there was no further investigation or report.

The door lock was problematic from the day she moved in, but completely stopped locking on 5 December 2022. She alerted the landlord to this issue on 27 December 2022, but the problem was not acknowledged until 24 February 2023. There were hotel guests walking into her premises by mistake, since all the doors looked the same (the premises being part of a hotel complex). This made her anxious and she sought medical advice. The landlord’s response

In reply, the landlord has explained that some of the emails were not responded to immediately, as staff were on leave over the holiday period. The landlord states that, in relation to the toilet, they were first notified on 6 January 2023 and a plumber attended on 9 January 2023. The landlord did not receive an email on 22 December 2022. An email was sent on 20 December 2022 advising the tenant of the emergency contact during the holiday period.

In relation to the door lock, an email was sent on 17 January 2023. There was other correspondence. There was no mention of problems with the door at the 15 February 2023 inspection, only about the hole above the shower. The issue was finally resolved on 4 May 2023 (the tenant agrees this was when the issue with the lock was finally addressed). However, the tenant would have been able to manually lock the door from the inside.

The landlord accepts there were delays addressing the shower vent issue. Temporary measures were put in place between 6 to 9 February 2023. However, it is accepted that the necessary work was not completed during this tenancy.

In terms of the hot water cylinder, regular maintenance was done, and no safety issues were identified. A handyperson attended with the building manager on 1 May 2023 and said it was due to dust and was not a safety issue. Legal framework

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.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded, up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the RTA.

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 Compensation for maintenance issues

In the present case the tenant 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 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 time. Taking into account the evidence and submissions of both parties, I find that the tenant has established her claim for compensation.

In terms of the problems with the vent, the landlord accepts this ought to have been resolved earlier.

The delays resolving the toilet were in part due to the tenant’s email being sent a few weeks after the problem first arose. Also, the timing of the email was during the holiday period. The landlord has provided an invoice from [The plumber] showing that a plumber attended on 9 January 2023 to repair the toilet. Therefore, while I am satisfied that the landlord made reasonable attempts to resolve this issue once notified of it, the tenant ought to be compensated for the loss of amenity.

In terms of the issue with the door lock, however, I find the landlord’s timeframe for resolving this to be unreasonable. The landlord was given notice of the problem, and even accepting some delays with communication over the holiday period, did not attend to it within a reasonable timeframe.

In terms of the sooty residue near the hot water cupboard, I acknowledge the tenant’s photographic evidence, and her documentary evidence of her written communication to the landlord. The likely cause of the residue is unclear, and both the tenant and landlord have their own views on the cause. However, I agree with the tenant that the landlord ought to have investigated her concerns earlier, and provided her with clearer communication.

There is also the tenant’s evidence of the health effect of the ongoing issues, including a medical certificate, list of medical consultations, and a report from [The doctor], general practitioner. [The doctor]’s report details the tenant’s health issues and symptoms, and notes the reasons for moving were due to her health concerns.

Therefore, taking into account the nature and duration of the issues, the resulting effect for the tenant, the tenant is to be compensated for the maintenance issues, in the amount of $600.00. Exemplary damages for maintenance issues

The tenant also claims exemplary damages. For this to be awarded, the test for exemplary damages must be met. This is set out in section 109(3) of the RTA, and requires, as a precondition, that the person against whom the order is sought committed the unlawful act intentionally. An intentional act is a deliberate act, not a negligent or careless oversight, or an act resulting from incompetence. In this case, I find that the required intent for exemplary damages is not met, so there is no separate award for exemplary damages. Healthy Homes Standards

[The tenant/s] claims 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 tenant/s] considers that the landlord has failed to comply with the HHS ventilation standard. In her application she notes that due to the lack of proper ventilation, there was mould, which affected her health.

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.

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 landlord has produced a Healthy Homes Assessment report completed by Oncore on 12 October 2022. This assessment was completed within a few weeks of the start of this tenancy. In relation to the ventilation standard, the report shows that the premises is fully compliant. It was noted that all extractor fans were working.

The tenant’s concerns regarding the ventilation in the premises is noted. However, in the absence of persuasive evidence in support, her claim that the landlord has been in breach of the HHS in relation to ventilation is dismissed. Mould

In terms of the issue of mould in the premises, the Tribunal in Semmens v Wadman 5 noted that mould is commonly present throughout all residential dwellings in New Zealand to some degree. Adjudicator Woodhouse explained 5 [2022] NZTT Manukau 310605 that simply having mould in the premises would not be sufficient to 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.

Where a property has an inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. As noted in Hullia v Tran & Vu 6 the premises must be able to be used and lived in, in the normal way, without excessive mould developing. The fact that some mould was in the house is not enough, and the opinion of unqualified persons is often not persuasive: Repia v Walsh Trust. 7

In this case, the tenant’s photographic evidence 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. The HHS report shows the premises complies with the HHS. Furthermore, the tenant has been unable to establish, with sufficient evidence, that there were defects in the premises which caused mould to develop. Accordingly, there is no compensation for mould. Filing fee

As the tenant has been mostly successful with her claim, the landlord is to pay the tenant’s filing fee. Suppression

An application for suppression has been made in this case by both parties. The Tribunal, having had regard to the interests of the parties and to the public interest, orders suppression of the tenant’s name and identifying details only, in view of the tenant being mostly successful in the proceedings.

Reasons

Claims and awards in Tenancy Tribunal application 4735189 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$600.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Total payable by Landlord to Tenant	$620.44

Both parties attended the hearing. Ms Gang appeared for the landlord.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded, up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the RTA.

In terms of the problems with the vent, the landlord accepts this ought to have been resolved earlier.

As the tenant has been mostly successful with her claim, the landlord is to pay the tenant’s filing fee. Suppression

Tenancy Tribunal case 4735189 — Tenancy dispute

At a glance

Tenancy Tribunal case 4735189 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions