What was Tenancy Tribunal case 4743594 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $651.30 from the bond, calculated as

How much money was awarded in case 4743594?

Compensation: $1,000.00 awarded to tenant; Rent Arrears: $750.10 awarded to landlord; Carpet: $310.50 awarded to landlord; Doors: $517.50 awarded to landlord; Water Rates: $73.20 awarded to landlord

What type of tenancy dispute was case 4743594?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4743594?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10127157-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4743594 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $651.30 from the bond, calculated as

How much money was awarded in case 4743594?

Compensation: $1,000.00 awarded to tenant; Rent Arrears: $750.10 awarded to landlord; Carpet: $310.50 awarded to landlord; Doors: $517.50 awarded to landlord; Water Rates: $73.20 awarded to landlord

What type of tenancy dispute was case 4743594?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4743594?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10127157-Tribunal_Order_Redacted.pdf.

9 Multose Drive, Flat Bush, Auckland 2019 Tenancy Tribunal Case 4743594 — Property damage

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4743594 — net $651.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$750.10		Rent arrears
Water rates	$73.20		Water rates
Repairs: carpet	$310.50		Repairs: carpet
Repairs: doors	$517.50		Repairs: doors
Compensation – failure to maintain		$1,000.00	Compensation – failure to maintain
Total award	$1,651.30	$1,000.00
Net award	$651.30
Bond	$3,400.00
Total payable by Tenant to Landlord	$651.30

Both parties attended the hearing. 4743594 2

The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The tenants sought compensation and/or exemplary damages for failure to comply with ventilation standards and failure to maintain the premises. Evidence generally

Much of the evidence in this case was viva voce, or oral, evidence from each party, requiring me to make assessments of reliability and credibility.

While this decision does not refer to all the evidence given, I have listened to both parties carefully, and taken time to reflect on all of the evidence carefully following the hearing and prior to issuing this decision. I also considered the additional material provided by the landlord following the hearing. This was provided to the tenants with an opportunity for them to comment on it. This was something of a leniency as the landlord noted (in his cover email) “I expected I would be fine without bringing these to the tribunal. Just like I have rent arrears notices sent to them during their tenancy as well, I didn't bring their whole file to court”, a party should attend the hearing ready to proceed, with the evidence required to support their own case, and answer the allegations from the other party. A party who does not attend fully prepared, runs the risk of not having sufficient evidence to prove their case or answer the opposing case.

Further, while there was a huge number of photographs provided, and I had to consider them all, many were not relevant, and identifying the relevant ones was a lengthy process, as the landlord was unwilling or unable to highlight the relevant photographs. The process was made more difficult by the late provision of the material and the fact that a copy was not provided for the tenant. The landlord was able to email the electronic version to the Tribunal, but this was not in the same format as the copy then provided to the tenant, which slowed proceedings. Natural justice requires that each party have copies of the evidence provided to the Tribunal so that they can respond to it. Further, if cost is an issue, the material could have been provided electronically in advance, as set out in the hearing notice.

I have had to listen carefully to the evidence and assess the credibility of each party, and this was not straightforward. However, I found the tenants to be forthright in their responses to questions. They were considered and measured, and they did not appear to be exaggerating. Further the tenants made a number of concessions – for example accepting that the damage to the carpet occurred during the tenancy, accepting the damage to the door, and accepting the times that the landlord did attend to maintenance promptly. I am able to consider these factors when assessing their evidence in the contested areas. 4743594 3

The landlord was open in some of his evidence, but vague and evasive in other areas. To his credit, he did accept that no maintenance work was done in relation to mould. However, when asked about whether he was aware that the tenants were concerned about mould and the operation of the fans he was evasive and vague, focussing on the fact that he was not on the phone at every inspection, rather than responding to the tenant’s evidence that she could not raise the mould issue with him at an inspection because he was on the phone. Other, relatively straight-forward questions were met with delays of several minutes, and had to be repeated before responses were received.

The landlord responded to any challenge to his evidence, or any questioning of him, with allegations of bias and that my questions were “personal” attacks. The Tribunal routinely deals with lay people, and tends to take an investigative approach accordingly and, as I outlined in the hearing, I had the option of asking probing questions to assist me to understand the landlord’s case (and to identify the relevant photographs within the plethora provided), or his defence to the tenant’s case, or I could ask no questions then potentially make adverse findings as a result of a lack of information. The fact that I asked more questions of the landlord related to the number of claims he made, versus the number the tenants made, and the fact that the tenants answered all questions directly when asked, and was not preferential treatment of them.

How much is owed for rent and water rates?

The tenancy ended on 12 August 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy. The tenant accepts the rent arrears are owed.

The landlord sought $190.00 for water rates. That was made up of water invoices up to 3 August 2023, then a final invoice for the last 2 weeks of the tenancy, amounting to $116.90.

As I observed that this was almost the equivalent of the water invoices for each of the two months previously, but only covered two weeks, I queries how this invoice was calculated. The landlord’s evidence is that it was an average of the previous 6 months water rates, pro rata’d for the two weeks.

Considering section 39 of the Act, which requires outgoings to be charged on a consumptions basis, and not on an average or pro-rata apportionment, I do not accept that this is the appropriate manner to calculate the water rates. A final reading, with from [Utility Company], or by the landlord reading the water meter himself was the correct manner to charge water on a consumption basis.

Accordingly, I do not consider this portion of the landlord’s claim is made out. It is dismissed.

The invoiced water rates are proved and awarded accordingly. 4743594 4

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The following damage was caused during the tenancy: a. Staining to the carpet on the stairs and entranceway. b. Damage to two doors.

The landlord claims both the cost of commercial carpet cleaning throughout the house and the cost of patching the damaged portion of carpet on the stairs and the entranceway.

The damage is more than fair wear and tear, and the tenant accepts that the staining occurred during the tenancy. 4743594 5

In relation to the carpet cleaning, the landlord’s evidence is that the carpet was cleaned in an effort to remove the stains, and the repairs were only carried out when that was unsuccessful. The landlord’s evidence is that he and the tenant had a “gentleman’s agreement” that the tenant would pay for carpet cleaning.

The tenant accepts that he initially offered to pay for cleaning, but the cost was well beyond that anticipated to clean the two affected areas.

The landlord is, in fact, seeking the costs of commercially cleaning the entire house. This is a significant amount given the house is 4 bedrooms, spread over two storeys. Further, I note the ingoing inspection report indicates staining to carpet throughout the house.

I do not consider there is sufficient evidence to support the landlord’s claim for commercial carpet cleaning throughout the house. Tenants are required to leave a premises “reasonably clean and tidy” at the end of the tenancy. I do not consider that this extends to commercial carpet cleaning. For a landlord to recover the costs of commercial cleaning, they must show staining that reaches the leave of damage for which a tenant is liable. Accordingly, had the landlord sought spot cleaning of the affected areas only, the outcome would likely have been different.

In relation to the “gentleman’s agreement” that the tenant would pay for commercial carpet cleaning, I consider that this agreement is unenforceable pursuant to section 11 of the Act, which provides that agreements inconsistent with the Act are unenforceable.

In relation to the carpet repairs, I consider that the damage to the carpet is damage the tenant is liable for. The amounts ordered are proved.

As discussed at the hearing, I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. Initially, I considered reducing the award to take into account the age of the carpet, the condition of it at the start of the tenancy and the expected lifespan of carpet in a rental property. However, on reflection, I consider the repair undertaken by the landlord is reasonable, and only went to the extent required to put them back in the position they were in prior to the tenancy. I do not consider the landlord is now in a better position. Accordingly, I am satisfied that awarding the full cost of the repairs in appropriate.

In relation to the two doors, the tenant accepts that one door was damaged during the tenancy. He made efforts to repair it. I do not consider these were sufficient taking into account the finish and lack of paint matching. I consider this portion of the landlord’s claim is proved.

In relation to the second door, the tenant denies damaging this door. The photographs provided by the landlord do not show damage. This portion of the claim is dismissed. 4743594 6 Exemplary damages generally

The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

Exemplary damages 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.

Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. Failure to comply with the HHS Ventilation standards and Failure to maintain

[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.

Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. 4743594 7 b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.

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 up to a maximum of $7,200.00. See section 45(1A).

The tenant’s provided photographs of the ventilation fan in the bathroom, and evidence that the fan was not work effectively, or at all for periods of the tenancy.

The landlord’s position is that the premises complies with the HHS ventilation standards. The evidence is that there is a healthy homes assessment available. The landlord did not produce this at the hearing as he was, on his evidence, more concerned with his application than the tenant’s cross application.

While the landlord’s position is that the ventilation complied with the current standard, the tenancy agreement seems to indicate that the premises has ventilation fans install prior to 2019 which duct to the outside and are therefore exempt.

I note the tenancy agreement also states that the HHS assessment was conducted on 24 September 2021, prior to the start of this tenancy.

It would have been very helpful for the landlord to provide a copy of the HHS assessment, as that would have answered the questions around compliance, and I do not find the landlord’s reasons for not providing it particularly compelling. However, I am mindful that this is a tenant application, and the tenant must prove the allegation that the property does not comply with the HHS.

On balance, I am, by a narrow margin, not satisfied that this is the case. The tenancy agreement and subsequent renewals all refer to the HHS and state that the property is compliant. The tenants have not provided an alternative report to disprove this.

Accordingly, this portion of the tenants’ claim is dismissed.

For completeness, I record that the landlord sent a copy of the HHS assessment after the hearing, and after the draft of this decision was written. It confirms the conclusions I had already reached on this point.

As an alternative, the tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986. 4743594 8

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.

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 Residential Tenancies Act 1986.

The tenants allege that the ventilation fans were not working properly or at all, for periods during the tenancy and that resulted in excessive mould growing in the property. Further, the tenants suspect there was a slow leak in the ceiling causing excess moisture, prior to a pipe bursting and causing a leak.

The tenants accept, entirely, that the landlord acted promptly to repair that leak.

However, the tenants allege that their complaints about the poor condition of the fans and the excess mould were not actioned promptly, or at all.

There are text messages provided by the tenant to an employee of the landlord raising both issues, from 6 September 2022. Further, the tenants says that this was repeatedly raised at property inspections with the landlord’s employee who advised them to raise it with the landlord. This was attempted but due to the landlord being on the phone it was not possible to have a proper discussion with him.

The landlord accepts that he did not attend to issues out mould. The landlord indicated that he may have been on his phone while his employee undertook inspections on occasion, but this was not all the time. He cannot recall if he was aware that the tenants had concerns about mould or the operation of the fans.

The landlord’s evidence is that there was “no mould” at the start of the tenancy. However, I note the entry inspection refers to mould on all curtains throughout the house.

This claim was one which relied significantly on oral evidence from the parties. There were the text messages referred to, and the entry inspection report which indicated the presence of mould. There are some photographs as well, although these are not dated. The tenant accepted that this was a weakness in their case, and noted that the better photos were previously in a phone no longer available to them.

As outlined, I found the tenant’s evidence reliable and compelling. I accept that they raised the issues of the fans and the mould with the landlord and/or his employee. The landlord accepts that nothing was done about the mould, although he maintained that the fans were maintained by an electrician. After the hearing concluded the landlord sent an invoice from 25 May 2023 confirming that the fans were working. There is no comment as to their effectiveness, and a heat lamp was replaced. While this is clearly material that should have been available at the hearing. However, I have considered it in finalising this decision. Despite that, no 4743594 9 explanation for the delay of nearly 9 months in having these issues address was received. I consider that this delay remains unacceptable.

I find the landlord committed an unlawful act.

That said, I am left in some doubt as to whether this was intentional, or a case of a lack of communication between the landlord and his employee. The promptness with which the landlord attended to the issue of the leak in the ceiling would indicate the latter.

That being the case, I do not consider that exemplary damages, with the associated stigma attached, are appropriate.

However, the tenants have had to live in a property with extra cleaning requirements and the frustration of not having their requests actioned, for a significant period. This is a breach of the Act, and I consider that some compensation is appropriate. I award $1000.00 pursuant to section 77(2)(n) of the Act for the landlord’s failure respond to the tenant’s requests for maintenance. Suppression

Both parties have sought suppression.

Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.

I consider both parties have been substantially successful in their respective claims, and grant both applications for suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4743594 — net $651.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$750.10		Rent arrears
Water rates	$73.20		Water rates
Repairs: carpet	$310.50		Repairs: carpet
Repairs: doors	$517.50		Repairs: doors
Compensation – failure to maintain		$1,000.00	Compensation – failure to maintain
Total award	$1,651.30	$1,000.00
Net award	$651.30
Bond	$3,400.00
Total payable by Tenant to Landlord	$651.30