What was Tenancy Tribunal case 4758737 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4758737?

Compensation: $5,000.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Inspection Report: $645.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Rent Arrears: $707.14 awarded to landlord

What type of tenancy dispute was case 4758737?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4758737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10718974-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4758737 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4758737?

Compensation: $5,000.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Inspection Report: $645.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Rent Arrears: $707.14 awarded to landlord

What type of tenancy dispute was case 4758737?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4758737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10718974-Tribunal_Order_Redacted.pdf.

19 Yale Road, Mount Cook, Wellington 6021 Tenancy Tribunal Case 4758737 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4758737 — net $8,558.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 24 February 2024	$707.14		Rent arrears to 24 February 2024
Compensation		$5,000.00	Compensation
Exemplary damages		$3,000.00	Exemplary damages
Damaged property		$600.00	Damaged property
Inspection report		$645.00	Inspection report
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$707.14	$9,265.44
Net award		$8,558.30
Total payable by Landlord to Tenant		$8,558.30

Claims and awards in Tenancy Tribunal application 4758737 — net $8,558.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 24 February 2024	$707.14		Rent arrears to 24 February 2024
Compensation		$5,000.00	Compensation
Exemplary damages		$3,000.00	Exemplary damages
Damaged property		$600.00	Damaged property
Inspection report		$645.00	Inspection report
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$707.14	$9,265.44
Net award		$8,558.30
Total payable by Landlord to Tenant		$8,558.30

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Hadyn Steven William Gaisford is liable to pay [The tenant/s] the sum of $8,558.30, calculated as shown in the table below.
Hadyn Steven William Gaisford must satisfy the liability by immediately paying the following sums to the named parties; - I.$6,838.30 to [Tenant 1] II.$1,320 to [Tenant 2] III.$400 to [Tenant 3]
The parties’ claims are otherwise dismissed.
The Bond Centre is to pay the bond of $2,120.00 ([Bond number suppressed]) to [Tenant 1] and [Tenant 3] immediately.

Reasons

Introduction

Only one of the tenants, [Tenant 1], attended the hearing on 24 July 2024. I note that the previous hearing on 11 April was adjourned at the landlord’s request, but the Tribunal then heard nothing from the landlord until after the recent hearing.
The Tribunal’s order made on 12 April directed the landlord to confirm his address for service to the Tribunal by 18 April and he has not done so. In any case, I am satisfied that the landlord has received notice of the hearing by email at least. I note that one of the property managers for this tenancy has confirmed that they sent notice of the hearing to the landlord together with the filed documents.
The tenant claims compensation and exemplary damages mainly for breach by the landlord of his obligations relating to the condition of the premises.
The landlord claims rent arrears. He indicated that he intended making claims for damage to the premises and for “theft” of chattels but no details of any such claims have been provided to the Tribunal. Background
This order should be read in conjunction with the Tribunal’s order dated 12 April 2024 which provides more background.
Briefly, the first named tenant occupied the premises from March 2022 to February 2024. I will call her the lead tenant. In that time, she had three co- tenants at different times. There have therefore been three tenancies but for convenience I am dealing with all of them together. I have apportioned the sums awarded between the parties to the three tenancies. I discuss that in more detail below.
I note that only two of the three co-tenants are named in this order. That is because one of the co-tenants chose not to join the application.
There were two one-year fixed term tenancy agreements with the second tenancy having an end date of 24 February 2024.
There were also two, possibly three property managers involved representing the landlord.
I will deal first with the landlord’s rent claim. Rent
On 13 December 2023, the then co-tenant gave the landlord’s property manager, Taylor Property Plus (2006) Limited (Taylors) a 28-day termination notice ending on 10 January 2024.
Taylors accepted the notice and informed the tenants that the tenancy would end on 10 January.
The lead tenant acknowledged Taylors’ message. Then, early in the new year, after discussing the situation with her family, she informed Taylors that the tenancy could not be ended in that way because it was for a fixed term.
By that time the co-tenant had found somewhere else to live and she duly vacated the premises on 10 January leaving the lead tenant alone in the premises and without anyone to share payment of the rent.
The lead tenant was correct to point out that the landlord could not accept the co-tenant’s notice to end the fixed term tenancy early. One joint tenant of a periodic tenancy can end the tenancy (for all tenants) by giving a valid termination notice, but a joint tenant of a fixed term tenancy cannot. Ending a fixed term tenancy in these circumstances requires the agreement of all parties to the agreement.
It seems that Taylors have suggested that the co-tenant had a periodic tenancy. That would mean that the tenants had separate agreements and either of tenants could be left alone on their tenancy if the other co-tenant decided to terminate her tenancy. That would be very unusual and of course potentially very unsatisfactory for the parties. It would also raise the issue of how much each tenant was liable to pay in rent. Is it the full rent or a proportion of the rent?
At the time that the change of tenant occurred, there was a fixed term agreement, and the obvious presumption is that the new tenant became one of the tenants under that agreement. There would need to be an express agreement if the position were different, and it would have to provide for the parties’ respective liability for rent. Such an arrangement would be potentially highly unsatisfactory for all parties involved and I reject it.
It follows that Taylors should not have accepted the co-tenant’s termination notice. The lead tenant suggested that Taylors must have known that the notice was invalid and that by accepting it, they (on behalf of the landlord) have in effect attempted to terminate the tenancy unlawfully. Whist there is some force in that argument, I do not accept it. I am not willing to find that the landlord knew that the notice was invalid when there is another possibility. I note as well that the tenant did not immediately or very shortly after the notice, challenge it or the landlord’s acceptance of it.
But I do find that the notice released the co-tenant from liability for rent after 10 January. Because the landlord had no right to do so, and it was obviously against the lead tenant’s interests, I find that the lead tenant’s liability for rent was reduced to the proportion of the rent that she had been paying from 11 January to the end of the tenancy.
I note here that the lead tenant claims expenses arising from the unlawful termination of the tenancy on 24 February on the basis that the tenancy should have continued as a periodic tenancy after that date. I don’t accept that. The cotenant was entitled to end the tenancy at the end of the fixed term by giving at a 28-day notice before the last day of the tenancy. Her evidence (given at the last hearing) was that she would have done so if her early termination notice had not been accepted. Therefore, the lead tenant’s claim in that respect must be dismissed.
I have calculated the lead tenant’s liability for rent by starting with the landlord’s rent statement showing that rent was paid to 17 January with $228.57 in credit. The lead tenant’s share of the rent was $270 per week. Rent at that rate from 18 January to 24 February (38 days/7 x $270) comes to $1,465.71 - $228.57 = $1,237.14. The tenant has paid $530 (on 20 January), after the rent statement was issued and so that must be deducted leaving $707.14 due. I have therefore awarded the landlord that amount for rent arrears.
That disposes of the landlord’s application. The Tenants’ Application Law
Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.
Regulation of the Housing Improvement Regulations 1947 provides that every house shall be free of dampness. That means that houses must not be intrinsically damp. It does not relate to how the house is used. It means that houses must not suffer from dampness due to damp ground conditions under or near the house.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
Section 45(1)(bb) of the Act requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Compliance dates for the HHS vary depending on the tenancy but in this the HHS compliance statement confirmed that the premises complied with the HHS from the beginning of the tenancy.
The ventilation standard sets out minimum expectations for windows and doors, and in particular the 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 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 moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS provides exemptions in specific circumstances.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
The obligation to provide and maintain the premises in a reasonable state of repair is qualified by the requirement to have regard to the age and character of the premises. What is a reasonable state of repair will vary according to the age and character of the premises. The required state of repair for a modern house will generally be higher than for an older “character” house. The Condition of the Premises
The tenants claim that the premises were damp, draughty and cold during the tenancy and that they did not comply with the Healthy Homes (HH) requirements in several respects.
I will consider the evidence in more detail below, but I will begin with the Building Inspection Report that the tenant obtained dated 31 August 2023. It is authored by [the building inspector]. The report found the following main defects: I.Mould behind the wallpaper on walls in the lounge to an extent that he recommended that the lounge should not be used. II.Elevated moisture readings in the bathroom. III.The bathroom and kitchen extractor fans vented into the roof space. The ducting was not connected to the roof vent. IV.The premises lacked efficient surface water drainage systems. The front yard sloped towards the premises and surface water was able to run against the cladding and enter the sub-floor space.
The report recommended further investigation into the cause of the raised moisture levels and mould with reference to the exterior cladding to see whether moisture was entering the premises from the outside. As far as the tenants are aware, no further investigation was not done.
This is an old (100+ years) character house typical of its time and type. It was never going to be as warm and dry as a modern house. There was no ground vapour barrier or insulation under the house and no insulation in the walls. There was not enough space between the floor and the ground to work under the floor and so none of those things was required. The tenants point to unreasonably large power bills arising from the difficulty to keep the premises warm. The bills were high but that was always likely to be case with a house of this type.
That said, there are minimum requirements that every rental property in New Zealand must meet and, after considering the evidence, I am satisfied that the premises did not meet some of them.
The lead tenant said that workman came and went from the property during the tenancy carrying out work on the roof and the walls. I note that the property managers wrote in in December 2022 that handymen would be doing some exterior work prior to painting. Her impression was that they were carrying out running repairs but that they never rectified the fundamental inadequacies of the building. It is trite to say that old buildings need more maintenance than new buildings. With old buildings, one eventually reaches the point where properly repairing the building becomes unreasonably expensive and modest repairs are inadequate. The building eventually reaches the end of its useful life.
The tenants’ photographs and video evidence show a building with gaps in the walls and other places, damp areas behind wallpaper and vegetation that has grown into the cavity between the exterior cladding and the interior wall linings. The floorboards also have gaps between them.
They also show a rotten and split window in December 2022.
I find that the premises were not maintained in a reasonable state of repair. The evidence does not disclose what repairs were required or whether repairs were a viable option. What is plain is that damp should not be found in wall linings behind wallpaper. Even without further investigation, I am satisfied that the damp likely resulted from the premises allowing moisture to enter the premises from outside. The premises were not watertight.
This had the effect of causing the premises to be damp, cold, difficult to keep warm and uncomfortable to live in. The tenants are entitled to compensation for this breach by the landlord of his obligation to maintain the premises in reasonable state of repair and to prevent dampness.
Another serious breach relates to drainage. Because there was no ground vapour barrier or insulation under the floor, it was especially important to ensure that the property had proper drainage to prevent dampness from the ground. But the ground at the front of the building, where the premises are, sloped towards the building allowing water to run under the house, leading to damp ground conditions. The lead tenant said that she saw work being carried out to the property after the tenancy ended to lower the ground at the front so that it sloped away from the building. That work should have been completed before this tenancy started.
There is no evidence of any drainage that could prevent surface and ground water travelling under the building and the work to lower the ground at the front suggests that there was none or that it was inadequate. It follows that there was a breach both the HHS for drainage and the Housing Improvement Act.
The ducting from the extractor fans in both the kitchen and the bathroom did not vent to the outside which a clear breach of the HHS ventilation standard. Plainly that resulted in moisture from the kitchen and bathroom being discharged into the roof space. That would cause dampness in that space further exacerbating the problem of dampness affecting the premises.
The tenants also complain about a low flow from the shower. But there was no evidence as to the rate of flow and so I am unable to judge whether the flow was unreasonably low.
The tenants’ first complaints were made in March 2022 referring to uncleanliness, mould, the kitchen fan not working and the toilet floor being soft in places. The landlord sent cleaners into the premises, but the lead tenant said that even after the that, the premises were not left reasonably clean.
In March 2023 the lead tenant wrote to the property managers with a list of issues including dampness and mould and the kitchen fan and light not working. They said that they were going to get “these bits and pieces sorted”.
Again, in September 2023 the lead tenant told the property managers that the kitchen and bathroom fans were still problematic and complained about dampness, mould and draughts.
The tenants are entitled to compensation for the effects that these breaches had on them. I intend making an award covering the term of the tenancy for all tenants. The application claims a full refund of rent but that is not warranted. The tenants had the benefit of the premises and compensation should be based on the effect that the breaches had on the tenants including diminution of their enjoyment of the premises and discomfort.
The unsatisfactory condition of the premises would be more evident in the colder months. There would have been periods during more clement weather when the dampness abated. There is no formula for calculating compensation in this type of case. I have awarded $5000 as general compensation. It works out at just over 18% of one year of rent.
The lead tenant claims compensation for the loss of a pair of boots and a leather lounge suite which she says were damaged beyond repair by mould. She values them at $169 and $5000 respectively. I accept that and an award of the second-hand value of the items is appropriate. I have awarded $100 and $750 respectively.
It was reasonable for the tenants to obtain the inspection report and so I have awarded the cost of that as well. The landlord did not attend the hearing and so the Tribunal has the power to award costs. Exemplary Damages
Taylors have provided some written evidence which can be summarised as they did their best to attend to the maintenance of the premises, but they were hampered by contractors who executed work poorly and the landlord who was reluctant to spend the money needed to adequately maintain the premises. As well, the owner was quick to blame the tenants for mould in the premises citing a lack of ventilation. That was not the problem. He was also keen to find exemptions for the compliance with the HHS. Taylors informed him that they did not apply.
My impression is that the age, type and condition of the premises and of the building generally were such that the cost of properly maintaining them was either beyond the landlord’s means or simply beyond his willingness to spend the money that was needed to maintain them.
The effect of this was to degrade the tenants’ living conditions. The law requires residential landlords to provide and maintain premises to a certain standard and if landlords are unwilling or unable to do so, they should be discouraged from that. I find that an award of exemplary damages is required to do so. Taking the various breaches into consideration, I have awarded $3,000. Unlawful Entry
There was some evidence that a contractor came to the property and entered the premises during the tenancy when the tenants were not there. The lead tenant found a crowbar in the laundry when she returned home. The property managers at the time said that they did not send the contractor. Either the landlord must have sent the contractor, or the contractor was acting on his own initiative.
The entry was plainly unlawful, but I am not minded to make an award against the landlord for it. There was no pattern of the landlord engaging in that sort of behaviour and it could well have been a one-off incident of a contractor needing access to something inside and taking their opportunity. I certainly don’t condone it, it should not have happened, but in the scheme of things in this case it does not warrant an award. Incorrect Rent Claims
I accept that one of the property managers during the tenancy made claims of rent arrears against the tenants which were unfounded. It seems that their records were incorrect. The lead tenant was understandably upset by this, and it cause friction between her and her co-tenant at the time.
I am confident that the claims were not malicious, and they most likely resulted from a misunderstanding or error by the property managers. These things happen sometimes, and they do not generally attract an award of compensation or exemplary damages. Neither is appropriate in this case. Filing Fee
The tenants have been successful and so the landlord must pay the filing fee. Apportionment
The Tribunal would not usually apportion awards between tenants but because these were three separate tenancies, it is necessary to do so.
The lead tenant is entitled to 78.5% of the awards of compensation and exemplary damages. She is the only tenant claiming in respect of the first year of the tenancy and she was one of two tenants for most of the second year and the only tenant for the last six weeks of the tenancy.
The other two tenants are entitled to a share of the awards for the second year according to the time that they were tenants. By my calculation the second named tenant is entitled to 16.5% and the third named tenant to 5%. The lead tenant is also entitled to the awards for property damage, the cost of the building report and the filing fee. The rent arrears must come off the lead tenant’s entitlement.
I have therefore ordered payments to the tenants of $6,838.30, $1,320 and $400 respectively. Bond
The bond must be paid to the last two tenants. Suppression
The tenants have had substantial success and so I grant them name suppression.

Tenancy Tribunal case 4758737 — Exemplary damages at 19 Yale Road, Mount Cook, Wellington 6021

At a glance

Tenancy Tribunal case 4758737 — Exemplary damages at 19 Yale Road, Mount Cook, Wellington 6021

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions