What was Tenancy Tribunal case 4752138 about?

The tribunal order states: Victoria Central Apartments Limited must pay [The tenant/s] $2,775.44

How much money was awarded in case 4752138?

Compensation: Failure to comply with…: $1,170.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $1,755.00 awarded to landlord

What type of tenancy dispute was case 4752138?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4752138?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10066488-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4752138 about?

The tribunal order states: Victoria Central Apartments Limited must pay [The tenant/s] $2,775.44

How much money was awarded in case 4752138?

Compensation: Failure to comply with…: $1,170.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $1,755.00 awarded to landlord

What type of tenancy dispute was case 4752138?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4752138?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10066488-Tribunal_Order_Redacted.pdf.

50A Victoria Street, Petone, Lower Hutt 5012 Tenancy Tribunal Case 4752138 — Healthy homes

Claims and awards in Tenancy Tribunal application 4752138 — net $2,775.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,755.00		Rent arrears
Exemplary damages: Failure to lodge bond		$1,000.00	Failure to lodge bond
Compensation: Failure to comply with Healthy Homes		$1,170.00	Failure to comply with Healthy Homes
Bond funds held		$2,340.00	Bond funds held
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,755.00	$4,530.44
Net award		$2,775.44
Total payable by Landlord to Tenant		$2,775.44

Claims and awards in Tenancy Tribunal application 4752138 — net $2,775.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,755.00		Rent arrears
Exemplary damages: Failure to lodge bond		$1,000.00	Failure to lodge bond
Compensation: Failure to comply with Healthy Homes		$1,170.00	Failure to comply with Healthy Homes
Bond funds held		$2,340.00	Bond funds held
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,755.00	$4,530.44
Net award		$2,775.44
Total payable by Landlord to Tenant		$2,775.44

Order

Victoria Central Apartments Limited must pay [The tenant/s] $2,775.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. Mr Hamish Dahya, the director of the landlord company, attended by teleconference.
The tenant claims: a. Compensation for failing to comply with Healthy Homes Standards and failing to maintain the premises; b. Exemplary damages for failing to lodge the bond with the Bond Centre.
The landlord indicated that he intended to file an application against the tenant for rent arrears. However, with the consent of both parties, this matter was dealt with at the hearing. Background facts
The premises are a large garage which has been converted into a loft style apartment. There is a front entry door and a large garage door which is permanently closed.
The landlord and other investors purchased the premises in or about 2020 with the intention of demolishing them and erecting a multi-storey apartment complex. They applied to the Hutt City Council for a resource consent to demolish the building and construct a 4-storey mixed use building with 2 commercial units and 25 residential units.
The vendor of the premises remained a tenant after the sale was settled. This meant that the landlord was exempt from complying with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) as required under regulation 6 HHS. Regulation 30 HHS provides that the landlord need not comply with HHS if the tenant owned the premises immediately before the landlord acquired the premises; the tenancy commenced immediately after the landlord acquired the premises; and less than 12 months has expired since commencement of the tenancy.
Once the former owner’s tenancy came to an end, the landlord advertised the premises for let again as the resource consent was still pending. The consent had stalled because of proposed zoning changes being considered by Council. It was anticipated that the proposed changes would make it easier for the landlord to construct its multi storey development without requiring a resource consent.
The tenant contacted the landlord about renting the premises. Mr Dahya emailed her on 21 February 2022 with a video of the premises and advised: “The home does not meet healthy homes requirements, but falls under the exemption, given the property is to be redeveloped and a resource consent is in Council but stalled. Zoning changes are occurring in August to the area so things have been delayed.”
The landlord was relying on regulation 31 HHS which states: 31 Exemption if premises due to be demolished or substantially rebuilt (1) The landlord need not comply with regulation 6 if,— (a) before the commencement of the tenancy, the landlord applied for consent to demolish or substantially rebuild the premises, with that work to begin within the grace period; and (b) as at the commencement of the tenancy— (i)the application is still pending; or (ii)if consent was granted before the tenancy commenced, the consent remains in force. (2) This exemption ceases to apply if, during the term of the tenancy, any of the following occurs: (a) the consent lapses or is terminated: (b) the grace period expires:................. (4) In this regulation,— grace period means the period of 12 months beginning on the date of commencement of the tenancy......
If the tenancy continues after the exemption expires, regulation 7 HHS requires the landlord to comply with the HHS. In the case of the exemption ceasing because the grace period of 12 months expires, a landlord is required to comply with the HHS “as soon as is reasonably practicable after the exemption ceases to apply”.
The tenant understood that the premises did not comply with the HHS and signed a tenancy agreement with the landlord to rent the premises for a fixed term starting on 25 February 2022 and to end on 28 January 2023. Rent was set at $585. A bond was payable of $2,340 (the equivalent of 4 weeks’ rent) and the agreement specifically recorded: “The landlord intends to demolish or substantially rebuild the rental property and has applied for or has been granted the relevant resource or building consent. This exemption will last for up to 12 months from the healthy homes compliance date. This exemption will cease if the application for consent is refused (unless challenged) or the consent lapses or is terminated.......”
The tenancy proceeded and on the expiry of the fixed term, it rolled over into a periodic tenancy. This tenancy is subject to section 60A Residential Tenancies At 1986 (RTA) which provides that all new or renewed fixed term tenancies entered into after 11 February 2021 automatically become periodic tenancies on the expiry of the term unless the parties agree not to continue with the tenancy; the parties agree to renew or extend the tenancy; a party gives a notice not to continue the tenancy or to terminate the tenancy in accordance with any of the permitted grounds mentioned in sections 50(1)(a) to (b) of the RTA.
Subsequently, the tenant gave 28 days’ notice to terminate the tenancy on 27 July 2023.

Has the landlord breached HHS obligations?

The tenant gave evidence that she was suffering from some mental health issues in early 2023 for which she received some support from a health practitioner. This support person felt that the tenant’s decline might also be attributable to her living situation and offered to contact the landlord to advocate on her behalf. The support worker called Mr Dahya on or about 30 May 2023. According to the landlord, the support worker said there were several outstanding maintenance issues that needed attention at the premises, and she abused him and made various threats to report him to MBIE for failing to comply with HHS. She also urged him not to terminate the tenancy.
Mr Dahya says that it was only after receiving this call that he realised the 12- month grace period had elapsed. He immediately emailed the tenant advising that he had been called by her support worker; that the 12-month healthy homes exemption had expired; he did not want to breach the RTA and was concerned about compliance with tenancy laws. He suggested that he might apply to the Tribunal for an extension of time if possible, given the plans to redevelop the property. He also asked the tenant to advise what maintenance items she thought were outstanding as he was not aware of any major repairs.
The tenant replied by email on 1 June advising that she enjoyed living at the house and wanted to stay as long as possible. She acknowledged that she would need to leave when the redevelopment commenced and mentioned difficulty finding new accommodation. She said that while she had authorised her support worker to contact Mr Dahya, she hadn’t intended her to communicate with Mr Dahya in the manner she did. The tenant was very concerned to retain the tenancy because she knew it would be difficult to find another home (especially because she had dogs). She was worried about becoming homeless. While the tenant was aware that the exemption had expired and she was also concerned about some maintenance issues at the premises, she said at the hearing that she did not raise these matters with the landlord because she did not want him to end the tenancy. She understood that the tenancy would be terminated because of the intended redevelopment plans.
The landlord says he received advice from Tenancy Services that an extension of the exemption was not possible, and he would either need to make the premises compliant with HHS or terminate the tenancy. Subsequently, the tenant gave a 28-day notice to terminate the tenancy with effect on 27 July 2023.
It is hard to see that the landlord would have had grounds to terminate the tenancy. The landlord could not give notice to terminate the tenancy simply on the expiry of the fixed term, nor on expiry of the “grace period” under regulation 31 HHS, nor because the premises did not meet HHS. Although the landlord still intended to demolish the premises and advised the tenant that he had no intention in those circumstances of incurring costs to make the premises HHS compliant, those reasons are not grounds for termination. The landlord could not terminate the tenancy unless one of the grounds in sections 50(1)(a) to (b) apply. (See also sections 60A, 50 and 51 RTA).
The landlord might have argued that he could give a termination notice either under sections 51(2)(f) or (g) RTA.
Section 51(2)(f) RTA allows a landlord to give 90 days’ notice to terminate the tenancy if a redevelopment of the premises is to be carried out by the landlord or owner, provided: it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken, and the work or material steps towards it are to be taken within 90 days after the termination date. The definition of material steps includes applying for regulatory consent.
Section 51(2)(g) RTA allows a landlord to give 90 days’ notice to terminate a tenancy if the premises are to be demolished and the demolition is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
Whether the landlord could rely on either of those sections to terminate the tenancy is arguable given that they seem to apply where a landlord decides to do the work after the tenancy begins and there must be an intention to take material steps within 90 days after the termination date. In this case, the landlord had already applied for regulatory consent before the tenancy started and other “material steps” such as starting the work did not occur within 90 days of the termination date. Notably the resource consent application was declined on 15 February 2024.
However, I am not required to decide whether the landlord had a right to terminate the tenancy because the tenant gave notice to terminate, albeit she did so under the impression that the landlord had a right to terminate.
It is clear that the landlord has not fully understood the provisions in the HHS regarding this particular exemption which are relatively new and complex. The landlord understood that he could terminate the tenancy to proceed with the redevelopment. However, he likely did not appreciate the limits on termination if consent for the redevelopment work was refused or lapsed. I make the above comments to ensure the landlord is aware of the applicable law should he decide to let the premises again in similar circumstances.
It may seem a nonsense that a landlord is required to comply after a 12-month exemption where the intention is still to demolish and redevelop. However, the intention of the legislature is clear, and 12 months is the “line in the sand” that has been enacted with no ability to extend the time. This ensures that where there is a delay in obtaining consent and progressing the demolition/ redevelopment work, the landlord must take steps to comply. It would run contrary to the purpose of the HHS if a landlord could simply continue to rent premises for valuable consideration from a tenant without complying with HHS for an extended period of time.
There can be no dispute that once the period of 12 months expired from the tenancy start date (of 25 February 2022), the HHS compliance exemption claimed by the landlord under regulation 31 HHS expired. Therefore, after 24 February 2023 the landlord was required to comply with HHS “as soon as is reasonably practicable after the exemption ceases to apply” as required by regulation 7 HHS
While the landlord was transparent with the tenant and made clear that he had no intention of complying with HHS because of the intended redevelopment, the law nevertheless required him to take steps “as soon as reasonably practicable” after the grace period expired. In failing to do so before the tenancy ended 5 months later, I must find that the landlord has breached his HHS compliance obligations under section 45(1)(bb) RTA. Compliance with the HHS for insulation, heating, ventilation, draught-stopping, drainage and moisture ingress was required. The tenant seeks, and is entitled to, compensation for the breach.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as he would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
There was insufficient evidence, and it is therefore difficult to establish the extent to which the premises did not comply with the HHS standards regarding insulation, heating, moisture ingress and drainage, ventilation and draught- stopping. However, the tenant complained that heating was inadequate; there were gaps in windows; windows and doors that wouldn’t shut and a leaking roof.
There was an impact on the tenant, and she continued to pay rent for a property that was no longer exempt from HHS and was likely not up to the required standard for 5 months after the exemption expired. To recognise the breach and the impact of living in a sub-standard property on the tenant, I consider some compensation is justified but the award is at the lower end because there is insufficient evidence to quantify the extent of the HHS breaches. I award $1,170 which is equivalent to two weeks rent.

Has the landlord failed to maintain the premises in a reasonable state of repair?

Although the landlord was for the first 12 months exempt from HHS, he was still required to comply with other obligations under section 45(1)(b) RTA to provide and maintain the premises in a reasonable state of repair. Furthermore, a landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. Notably, the Housing Improvement Regulations 1947 (HIR), specify the minimum standards of fitness for houses which include a requirement that every house be free from dampness (regulation 15 HIR) and have an approved form of heating in the living area (regulation 6 HIR).
The landlord’s obligation under section 45(1)(b) RTA is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenant raised several maintenance issues with the landlord during the tenancy which she claims were not adequately addressed and for which she seeks compensation. Oven
When the tenancy started the oven wasn’t working and was replaced by the landlord. The tenant says only 2 stove top elements and the grill were working on the replacement oven. The bake function was not working. The tenant sent the landlord an email on 22 April 2022 stating: “Also I’m not sure if it was like it when I got it but the stove top has sort of sunk in the middle so all the plates are wonky....” She attached a photo of the oven. The landlord notes that the tenant did not mention that the oven itself wasn’t working and simply said that the elements seemed to be sinking.
The landlord sent his father to look at the oven. The tenant says she told him that the oven wasn’t working but the landlord denies this and notes that she did not advise of this in any email. The landlord also arranged for his maintenance person Pieter to look at it. Pieter advised that the elements were working and there was nothing to fix. The tenant did not contact the landlord again to follow up about the oven.
I find that the landlord investigated the issue and was satisfied that the stove elements worked. There is insufficient evidence to prove that the tenant advised that the oven bake function was not working. Accordingly, I find the landlord is not in breach of his obligations. Heating
Early on the tenant advised the landlord that there was no remote for the heat pump at the premises and, therefore, she could not use it. The landlord checked with the previous owner of the premises who confirmed that the heat pump and another gas wall heater were not working at all. The landlord immediately arranged for two wall heaters to be installed on 14 April 2022 before winter. The tenant says that these heaters were not adequate to heat the premises. However, she did not advise the landlord that they were inadequate. The landlord’s obligation regarding heating (other than the HHS heating compliance standard) was to ensure there was an approved form of heating in the living area as required by regulation 6 HIR. I find he did so, and he cannot be held liable for a failure to supply further heating when the tenant did not advise him that the heating provided was inadequate. Roof leaks
At the request of the tenant/support worker, an investigator from the Tenancy Compliance Investigation Team (TCIT) inspected the premises on 29 June 2023 and discovered a leak in the upstairs loft bedroom. They prepared a report listing several maintenance issues they observed which was produced in evidence (“the TCIT report”). The tenant says she had previously mentioned leaks in the ceiling to the landlord, but he did not address the issue.
In a text chain between the landlord and the tenant on 22 April 2022, the tenant advised the landlord of a leak in the downstairs hallway near the garage door. The landlord immediately replied asking whether the leak was coming from the roof area. The tenant advised that she did not know as she could not see the ceiling properly. The landlord said that he could have someone investigate but suggested it would be best to see the area when it was leaking to work out the source of the leak. The landlord sent a text asking if the tenant wanted him to instruct someone to check the area of the leak or whether she was happy to wait until it leaked again so that the drip locations could be sighted. The tenant did not reply and did not report any further leaking at the premises, either downstairs or in the upstairs loft during the rest of the tenancy.
The landlord was never sent the TCIT report during the tenancy and did not see a copy of it until the day before the hearing.
I am satisfied on the evidence that the tenant did not inform the landlord of any upstairs leak; did not complain about any further leaks during the tenancy after the messages on 22 April 2022, and did not respond to the landlord’s message suggesting options for investigating the leak. In those circumstances, I consider that the landlord cannot be held liable for leaks not reported to him. Gaps in windows and windows that would not close
The tenant says that there were gaps in the windows that caused draughts and windows in the upstairs loft that were seized open without latches. She advised the landlord about this early on in the tenancy but says nothing was done.
The landlord provided evidence of a text chain with the tenant on 5 July 2022 in which they discussed installing blinds to combat draughts through the windows as suggested by the tenant. The blinds were installed in late July. There is no evidence of the tenant reporting windows that would not close.
I am satisfied on the evidence that the landlord addressed the issue of blinds raised by the tenant and the landlord cannot be held liable for other failures with the windows that were not reported by the tenant. Garage door
The tenant says that the garage door would not close properly and let in water and draughts. However, I am satisfied that this problem was not reported to the landlord and therefore he cannot be held liable for failing to fix it. Driveway
The tenant claims that she contacted the landlord in late August 2022 advising that the driveway had become very boggy and slippery and needed attention. However, there is no evidence of her contacting the landlord until 23 September 2022 and then again on 30 September 2022 when she advised him by email that she had slipped over on the driveway. She sent some photos showing the state of the driveway after a night of rain and reporting slime and algae growing on the muddy surface. She said that there was no stable path from the car to the front door of the house. In a later message she advised the landlord that the driveway had been in this state since June 2022, but she didn’t report it.
The landlord responded on 1 October 2022 noting that something should be done quickly based on the photos. He arranged for his father to visit the site and investigate what was required to remedy the driveway. The landlord also arranged for an arborist to visit the site and provide a quote for trimming back trees that were affecting the driveway. Other contractors were also engaged to look at the site and suggest remedial action. The landlord then proceeded with ordering small stones/gravel to cover the driveway. There was a delay of approximately 10 days in completing the work as the tenant had a vehicle parked in the driveway that could not be moved and was being scrapped. The driveway work was completed on or about 19 November 2022.
I am satisfied on the evidence that the landlord took reasonable steps to investigate and remedy the driveway. Therefore, I find that he is not in breach of his maintenance obligations. I also note that the worsening state of the driveway might have been avoided had the tenant reported the problem earlier in June 2022.
In summary, I am satisfied that the landlord responded to the maintenance requests raised by the tenant in a reasonable timeframe but cannot be held liable for issues that were not reported. Therefore, the tenant’s claims must be dismissed.

Has the landlord failed to lodge the bond?

[The tenant/s]that the landlord did not lodge the bond with the Bond Centre during the tenancy.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
After the tenancy ended, the landlord indicated following a bond inspection that the bond would be released to the tenant. However, the landlord discovered that the bond had not been lodged by a staff member and he then had difficulty tracing the funds. The landlord believed that rent in arrears may exceed the bond funds received, so he held onto the bond. He states that it was not possible to lodge the bond with the Bond Centre after the tenancy ended.
At the hearing, it also became apparent that the landlord had failed to keep good records regarding the amount of bond money received from the tenant and records of rent paid. The landlord had not accounted for all bond money received from WINZ and the tenant for this tenancy and had also failed to keep a current rent summary during the tenancy. Despite numerous requests from the tenant after the tenancy ended, he did not send her a rent summary. He prepared a rent summary the night before the hearing which was incorrect and had to be amended.
I am satisfied on the evidence that the tenant paid the landlord $2,925 being $2,340 for bond and $585 for 1 weeks rent advance. These amounts were paid by two lump sums of $1,170 paid by the tenant on 23 February 2022 and $1,755 paid by WINZ on 2 March 2023. However, the bond was not lodged with the Bond Centre during the tenancy.
In failing to lodge the bond with the Bond Centre as required, the landlord has committed an unlawful act.
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.
I am satisfied that the matter of intention in terms of s109 has been established in that the landlord has failed to adopt a robust process to ensure that the bond was paid to the Bond Centre. A landlord ought to know that if they do not have good processes failing to lodge the bond is a likely consequence. Bond money belongs to a tenant, and it is of significant interest to both the tenant and the public that the money is held securely with the Bond Centre during the tenancy and that landlords comply with their obligations under the Act.
Exemplary damages are not compensatory but are designed to be a fine or penalty imposed to punish and deter and to mark disapproval of the conduct. After considering the factors in s109, I find that an award of exemplary damages at the higher end of the scale of $1,000 is justified. Factors that justify a higher award are that: the landlord did not lodge the Bond during the tenancy; once the tenancy ended and the tenant requested the bond refund, the landlord had difficulty tracing the funds and did not correctly account for all bond moneys received until the hearing, which highlights the landlord’s lax procedures; despite several requests from the tenant, the landlord did not provide a rent summary to justify retaining the bond and nor did the landlord take steps to file a claim for rent arrears in a reasonable timeframe so that the refund of the bond could be determined, with the tenant having to file this application in December 2023 almost 5 months after the tenancy ended; the failure to account for the bond (and rent arrears) caused the tenant significant stress and she noted that she had gone into debt as a result. Rent arrears
The landlord prepared a further rent summary on the day of the hearing which established that there were arrears of $1,755 when the tenancy ended. The Tribunal orders take rent arrears and bond money held by the landlord into account.
The landlord is reminded of the obligation to keep an up-to-date rent summary so that it can be provided to the tenant in a reasonable time-frame upon request as required in sections 29(3) and 30(1)(a) RTA. Accurate bond records must also be kept. See section 30(1)(b) RTA. General
I am satisfied that the tenant has substantially succeeded with her claims against the landlord and is entitled to have her name and identifying details suppressed. She is also entitled to reimbursement of the filing fee paid on the application. K Stirling, 11 March 2024

Tenancy Tribunal case 4752138 — Healthy homes at 50A Victoria Street, Petone, Lower Hutt 5012

At a glance

Tenancy Tribunal case 4752138 — Healthy homes at 50A Victoria Street, Petone, Lower Hutt 5012

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord breached HHS obligations?

Has the landlord failed to maintain the premises in a reasonable state of repair?

Has the landlord failed to lodge the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord breached HHS obligations?

Has the landlord failed to maintain the premises in a reasonable state of repair?

Has the landlord failed to lodge the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions