Published tribunal order
Tenancy Tribunal case 4747909 — State of repair at 43 Fidelis Avenue, Snells Beach, Rodney 0920
Decided 22 Jul 2024 · Published 22 Jul 2024 · Application 4747909
- State of repair
- Property damage
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- Rent A Property Limited as Agent for Shaun & Roger Nixon as Trustees for the Nixon Family Trust must pay [the tenant] $19,320.44 immediately, calculated as shown in the table below:
Reasons
The Proceedings
- The tenant filed an application on 18 December 2023 seeking work orders, compensation and exemplary damages for what the tenant claims were a series of breaches of the landlord’s obligations, particularly with regard to maintenance of the premises.
- The application also included a claim that a 90 day notice of termination issued by the landlord on 17 November 2023, should be declared retaliatory and set aside.
- The tenant’s application was heard on 5 February 2024.
- In an Order issued on that date, the Tribunal gave the parties an opportunity to consider possible terms for termination of the tenancy by consent.
- Agreement was not reached and on 14 February 2024 the Tribunal issued a further Order giving directions for determining the issues about the termination notice.
- A further hearing was held by teleconference on 12 June 2024. On 19 June 2024, an Order was made terminating the tenancy.
- As noted in that Order, because of the importance of that decision for the parties’ future planning, only termination of the tenancy was dealt with in that Order, with a separate Order to be issued in respect of the tenant’s other claims. This Order determines those claims. Work Orders
- The Order made on 19 June 2024 orders termination of the tenancy to allow the landlord to complete necessary and extensive maintenance work at the premises. It would not be appropriate to make additional work orders. Compensation and Exemplary Damages claims
- The tenant claims compensation and exemplary damages for a. failure to properly document the agreement b. breach of the obligation to comply with Healthy Homes Standards c. breach of the obligation to provide a Healthy Homes compliance statement d. failure to maintain the property in an adequate state of repair e. breach of the tenant’s right to quiet enjoyment of the premises f. failure to provide insurance information on request g. breach of smoke alarms regulations
- Each of the tenant’s claims is addressed separately below The Tenancy
- A residential tenancy agreement was signed between the parties on 24 September 2020. In that agreement the landlord was named as Shaun Nixon and Roger Nixon as Trustees of the Nixon Family Trust. The tenants were named as Michael Sims and Rochelle Pangilinan.
- The tenancy was for a one year fixed term from 25 September 2020 to 25 September 2021, at a weekly rent of $650.00.
- In November 2021 a txt from Mr. Sims to the property manager notes a request that the tenancy be extended for another year. The landlord responded, “...also at this stage the tenancy will not be signed up for another one year lease the landlord wanted to stay as a periodic tenancy.” The tenancy has therefore continued as a periodic tenancy from the end of the initial one year fixed term (see s.60A(1)).
- Mr. Sims left the property and in early September 2023 the property manager sent the tenant a new tenancy agreement and change of bond form. The new agreement provided for a weekly rent of $700.00.
- That agreement was not signed. Pressure was put on the tenant by the property manager to sign the new agreement stating, “a new tenancy agreement is required now that [Mr Sims] is no longer residing at the rental property. The rent increase will be going ahead if you wish to continue renting the property in your name only...................your urgent detention to signing the new tenancy agreement is required. Alternatively if you are not happy to continue your tenancy at 43 Fidelis Ave Snells Beach you can provide 28 days notice to vacate by email to me.”
- In an e-mail on 19 September 2023, the property manager stated, in relation to the claimed rent increase, “Since this is a completely new agreement, the usual 60 days’ notice period for a rent increase does not apply.”
- It is not at all clear to me on what basis the property manager made those assertions. At that point the parties were landlord and tenant under a periodic residential tenancy agreement. The tenant and Mr Sims were jointly and severally liable as tenants. The tenants had committed no breach of their obligations under the agreement or the RTA. I find no legal basis on which the landlord could demand execution of a new agreement, let alone at an increased rent.
- Pressuring the tenant to sign such an agreement, appears on its face to have been a means to increase the rent without giving due notice. That is in my view an interference with her right to quiet enjoyment and occupation of the premises that amounted to harassment of her. Compensation is warranted which I assess at 1 weeks’ rent.
- Those actions also constitute an unlawful act for which exemplary damages of up to $3,000.00 may be awarded (see s.38(3) RTA).
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
- Here, the property manager may have believed that a new agreement should be signed, with Mr Sims no longer living at the premises. However, even if that were the case, it should have been clear that it was simply redocumenting an existing agreement, not an opportunity to change the terms to the landlord’s advantage.
- The property manager was insistent that the tenant sign the new agreement and accept the higher rent – or she could give notice and leave. I also note though that the tenant declined to comply, and no rent increase took effect until proper notice had been given.
- There is a public interest in dissuading landlords from such conduct
- I find that a modest award of exemplary damages would have been just, to recognise that unlawful conduct.
- However, no such award may be made by operation of s.109(3) which provides that application for an award of exemplary damages later than 12 months after the date of commission of the unlawful act.
- The tenant claims the landlord was at fault for not providing a signed new agreement as required by s.13 RTA. It follows that as no new agreement was required, the landlord did not commit an unlawful act by not providing one. Upstairs Shower/ bathroom
- A shower that had been fitted shortly before the tenancy began, had been fitted incorrectly and began leaking. The tenants notified the landlord about the issue on 26 November 2020 and the tenants stopped using the shower.
- A txt to the property manager from Mr Sims dated 20 May 2021 notes. “...also we have mushrooms growing and we haven’t heard from anyone about the upstairs bathroom........ The property manager responded, Oh really. Ok I’ll call the landlord now.”
- The upstairs shower was dismantled on 12 August 2021. A 14 day notice to remedy was sent to the landlord by the tenant on 20 October 2021 noting that the upstairs shower had not been fixed, despite the landlord having been notified about the need for repair on 26 November 2020.
- The landlord responded that the work could not be done until level 2 lockdown. A $50.00 per week rent reduction for the inconvenience was offered.
- A later txt, on 19 January 2022 from the tenants says “..can u tell me when the bathroom is getting fixed this is gone beyond a joke I would like to have a date when it will be fixed ASAP”
- The property manager arranged for a builder to visit the next day. The new shower was installed on 5 February 2022.
- The landlord has discounted the rent by $50.00 per week for the period from
- 10.21 to 10.2.22 to compensate for lack of the second shower/ bathroom.
- The tenant had asked for that discount to be backdated. The evidence does not persuade me that a compensation amount had been agreed. Even if it had been, if that agreement represents less than the tenant was properly entitled to, the tenant cannot be bound by it (see. s.11).
- The evidence persuades me that the failure to have the bathroom reinstated for such an extended period constituted a breach of the landlord’s obligation under s.45(1)(b) to, “..provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”
- In my view lack of that second bathroom warrants compensation of $50.00 per week which should be paid from the date the tenants notified the landlord about the problem to the date it was fixed, 63 weeks later. Total compensation due is $3,150.00. After allowance for the rent credit already applied by the landlord ($800.00), further compensation of $2,350.00 is due.
- Breach of the landlord’s obligations under s.45(1)(b) is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
- Even allowing for the difficulty caused by the covid response over part of that period, the evidence does not show any reasonable excuse for that work not having been carried out much earlier than it was.
- Again, I would have found an award of exemplary damages just, but for operation of s.109(2). General Repair and maintenance
- The tenant’s evidence, which I accept, is that before giving a 14 day notice to remedy on 27 October 2023: a. Only one inspection of the premises was carried out during the tenancy, on 9 June 2023, before an inspection carried out on 22 February 2024, after the tenant’s application had been filed; b. The trees which surround the property had been pruned once to her knowledge; c. The gutters had not been cleared to her knowledge; d. The fire flue had not been cleaned.
- The evidence persuades me that there has been a failure by the landlord to attend to maintenance of the premises that was its responsibility. That is apparent from photographs provided by the tenant showing overgrown trees, dislodged downpipes, broken tiles, peeling paint which appears to be due to wall moisture consistent with water ingress and mould growth on painted and wooden surfaces.
- The tenant has been diligent about bringing the need for maintenance work to the landlord’s attention.
- The tenants had requested installation of an extractor fan in the bathroom and were told on 20 October 2021 that, “....a new fan will be installed in the downstairs bathroom ASAP”.
- In responding to concerns expressed by the tenant about lack of attention to maintenance issues, a further communication from the property manager on 19 September 2023, almost 2 years later, states, “New extract fans will be fitted this week at a time and day the Electrician arranges with you.” They were installed 10 October 2023.
- [The tenant/s]
- I find that the tenant is entitled to compensation for these breaches of the landlord’s obligation to ensure that the premises were kept in a reasonable state of repair and of obligations owed to the tenant.
- I assess 4 weeks’ rent as appropriate compensation.
- As these have been continuing breaches, s.109(2) does not preclude an award of exemplary damages being made.
- I do not find in the evidence a reasonable basis for the landlord’s failure to meet these basic and fundamental obligations or for failing to honour commitments made to the tenant.
- In considering the s.109(3) criteria I find that an award of exemplary damages, in addition to the compensation Ordered, would be just. Decks
- There is no doubt that the decks are not in an adequate state of repair and require significant repair work.
- In the Order dated 19 June 2024, I have noted the difficult irony for the tenant that requiring the landlord to meet its obligation to repair the decks, has led to a need for extensive work to be carried out, such that her tenancy has been terminated.
- Photographs provided from early in the tenancy and the various expert opinions that have been presented, satisfy me that the decks have been unsafe and in an inadequate state of repair throughout the tenancy. Concerns about the safety of the decks were raised by the tenant immediately after the tenancy began, on 20 October 2020.
- I find that compensation of $50.00 per week for the duration of the tenancy would be fair compensation, taking into account that lack of a safe deck will have impacted on the tenant’s use and enjoyment of the premises in different ways during different seasons. The compensation awarded is calculated to 18 July 2024. The rent abatement should continue to apply through to the end of the tenancy.
- In considering whether an award of exemplary damages would be just for breach of the landlord’s obligation to provide the decks in a reasonable state of repair, I note that having the decking replaced is a significant undertaking which the Tribunal has found cannot be completed with the tenant remaining in occupation of the premises.
- The notice of termination issued to the tenant so the work could be done was opposed by the tenant and it is apparent that the tenant has not wished to vacate the premises.
- In those circumstances I would not consider it just to make an award of exemplary damages in addition to the compensation warded. Healthy Homes compliance.
- This tenancy began on 25 September 2020. The dates by which various premises are required to comply with Healthy Homes standards are set out in Schedule 1 to the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
- For a general tenancy with a commencement date before 1 July 2021, unless renewed in the meantime, the compliance date is 1 July 2025.
- This Tenancy became a periodic tenancy on expiry of the initial fixed term on 25 September 2021, by operation of s.60A. There has been no renewal of the agreement and the date for Healthy Homes Compliance is accordingly 1 July 2025.
- It follows that the landlord cannot have committed an unlawful act by failing to ensure the premises were compliant with Healthy Homes standards before then. That claim is dismissed. Insurance information
- Section 45(2B) RTA requires that, “The landlord of premises that are insured may at any time, and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises.”
- Breach of that obligation is an unlawful act for which exemplary damages of up to $900.00 may be awarded.
- The tenant requested that information from the landlord. It was not provided. In an e-mail to the tenant in 19 September 2023, the property manager stated, “When a new tenancy agreement is signed and a request to have a copy of the properties insurance policy is asked for then, that is when one will be provided to you and noted also.”
- No satisfactory reasons are apparent from the evidence for the landlord’s refusal to comply with that lawful request. On its face it appears a means of putting pressure on the tenant to sign the new tenancy agreement at a higher rent.
- The breach is a continuing one and I find that it would be just to make an award of exemplary damages for breach of the landlord’s obligation to provide that information.
- My finding is that an award of exemplary damages of $750.00 would be appropriate. Healthy Homes Compliance Statement
- At the time the agreement was signed s.13A(1CA) required that the landlord provide a Healthy Homes compliance statement. Failure to do so was an unlawful act for which (then) exemplary damages of up to $500.00 could be awarded.
- The landlord did not meet that obligation and thereby committed an unlawful Act.
- However, s.109(2) applies, to prevent an application for exemplary damages being made. Smoke Alarms
- The tenant claims that the landlord breached its obligation top ensure that the premise were provided with compliant smoke alarms.
- Photographs have been provided showing smoke alarm mounting brackets with no alarms in place.
- The tenant included the lack of smoke alarms in the 14 day notice to remedy issued on 27 October 2023.
- In a response on 17 November 2023, the property manager asserted: “New smoke detectors are now installed. There were three smoke detectors present and working at the start of the tenancy and again at my last inspection as photo also present outside master bedroom at the top of the steps and in the living rom. There was no mention from you recently until the 14 day notice , that there was an issue with the present smoke detectors as is the responsibility of the tenant regarding them not working”
- The agreement makes no mention of smoke alarms.
- Photographs from the property inspection during the tenancy show the mounting brackets with no smoke alarms installed but the property manager says the alarms were there but on the bench. That does not seem entirely consistent with the above statement.
- However, absence of properly instaled smoke alarms does not appear to have been raised as part of the initial concerns noted to the landlord when the tenancy began. Nor does it appear to have been raised later, until included in the 14 day notice to repair – at which time the landlord ensured that compliant alarms were in place.
- I am confronted with conflicting evidence, without compelling evidence to corroborate either party’s position. As this is the tenant’s claim the onus is on her to provide evidence to prove her claim. I do not find that the evidence provided meets that threshold Breach of Right to Quiet Enjoyment
- The tenant claims compensation for actions by the property manager that she says breach her right to quite enjoyment of the premises. They include the property manager being parked outside the premises taking photographs, being presented with photographs indicating the landlord or tradespeople may have been to the premises without prior notice to her.
- Having considered the evidence provided and the oral evidence given at the hearing, my finding is that the tenant has not proved, on balance, breaches of her right to quiet enjoyment that would warrant an award of compensation in addition to those made in this Order.
- Because [The applicant/s] has largely succeeded with the claim I must reimburse the filing fee.