What was Tenancy Tribunal case 4761637 about?

The tribunal order states: [The landlord] must pay [The tenant] $8,477.73 immediately, calculated as shown

How much money was awarded in case 4761637?

Cleaning: $967.83 awarded to landlord; Cleaning: $828.00 awarded to landlord; Ceiling: $1,200.00 awarded to tenant; Compensation: Fixed Gas Charges: $248.56 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $2,925.00 awarded to tenant; Property Damage: $1,200.00 awarded to tenant

What type of tenancy dispute was case 4761637?

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

Where can I read the official tribunal order for case 4761637?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10556974-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4761637 about?

The tribunal order states: [The landlord] must pay [The tenant] $8,477.73 immediately, calculated as shown

How much money was awarded in case 4761637?

Cleaning: $967.83 awarded to landlord; Cleaning: $828.00 awarded to landlord; Ceiling: $1,200.00 awarded to tenant; Compensation: Fixed Gas Charges: $248.56 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $2,925.00 awarded to tenant; Property Damage: $1,200.00 awarded to tenant

What type of tenancy dispute was case 4761637?

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

Where can I read the official tribunal order for case 4761637?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10556974-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4761637 — Healthy homes

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4761637 — net $8,477.73 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning: (Paint Repairs at 10% of cost	$828.00		Carpet Cleaning: (Paint Repairs at 10% of cost
Carpet Cleaning: (Carpet Replacement at 10% of	$967.83		Carpet Cleaning: (Carpet Replacement at 10% of
Compensation: Fixed gas charges		$248.56	Fixed gas charges
Exemplary damages: Bond not lodged		$1,500.00	Bond not lodged
Exemplary damages: Failure to repair the bathroom		$1,200.00	Failure to repair the bathroom
ceiling		$1,200.00	ceiling
Exemplary damages: Breach of healthy homes		$2,925.00	Breach of healthy homes
Total award	$1,795.83	$7,073.56
Net award		$8,477.73
Total payable by Landlord to Tenant		$8,477.73

Both parties attended the hearing.

The tenant has applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee.

The landlord has made a cross application for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. LANDLORD’S CLAIMS

How much is owed for rent and water rates?

The tenancy ended on 30 September 2023.

The landlord provided rent records and water rates invoices which show that there were no rent arrears owing at the end of the tenancy and that the fixed water rates charges the tenant had paid during the tenancy offset any water rate arrears owing at the end of the tenancy.

The tenant had been required to pay the fixed monthly gas charge during the tenancy and sought compensation for the $248.56 of fixed charges he paid. The tenant provided proof of the amounts billed to him. I award compensation of $248.56 to the tenant accordingly.

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. There was damage to the paint on the walls and ceiling in the living room/dining room area of the house that the tenant tried to fix but the paint was not a colour match and the room required repainting; and b. There were marks on the bedroom floors and the living room consistent with ink and super glue damage by children.

The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. I have awarded 10% of the repainting costs and 10% of the carpet replacement costs based on the following: a. The carpet was new in 2009/2010 and is 13 years old. The house was tenanted by a family for 2.5 years and there was some further wear and tear to old worn carpet that the landlord chose to replace when he and his family returned to New Zealand after living overseas. The tenant paid for two lots of professional carpet cleaning and spot cleaning and the stains were considerably faded but still visible. I was unable to get any close of views of the carpet at the beginning of the tenancy but from the tenant’s photos the carpet was worn and had some stains; b. The invoice for painting is for 10 rooms, 9 of which I have determined the paint damage in was fair wear and tear. The tenant accepted liability for the lounge walls needing repainting.

The amounts ordered are proved.

I have considered 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. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. TENANT’S CLAIMS Failure to maintain

[The tenant] claims that the landlord has breached their obligations under section 45 (1)(b) of the Residential Tenancies Act 1986.

Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .

There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .

Breaching either of this s45(1)(b) obligation 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.

General damages may also be awarded in the form or rent reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.

The landlord failed to repair the damaged ceiling in the downstairs toilet after the February 2023 cyclone moved a roof tile exposing the inner ceiling to water damage. The tenant was left to dry out and repair the water damage to the ceiling himself and to incur the cost of the material to do so. In being left to remedy the damage himself he was left exposed to the risk of being blamed for the quality of the repair and to any issues that resulted from him not fully drying out the ceiling when he was unable to get a fan into the inner ceiling cavity and had to dry it slowly from inside the toilet room. He also lived with the inconvenience of a damp ceiling that needed mould treatment until he could fully dry it out and treat the black mould. I find 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 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

I am satisfied it would be just to require the landlord to pay a sum of $1,200.00 in exemplary damages (a sixth of the total penalty available), and make the order accordingly because: a. The tenant and his family were required to undertake the remedial work in the toilet when it was the landlord’s responsibility to do. The tenant could not expose the inner ceiling cavity so had to live with black mould and dampness for a period until the ceiling dried out fully. The landlord knew that the paint was peeling, and the moisture reading was high when he fixed the tile on the roof that had moved, and he should have completed the repair of the ceiling before the mould appeared; b. The tenant suffered the inconvenience associated with the cold, damp and mouldy toilet and the cost of undertaking the drying out of the ceiling, the repair and paint of the ceiling and treating the mould; c. It is in the interests of the tenant to receive exemplary damages for the inconvenience and cost; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations. Failure to meet healthy Homes Standards

[The tenant] 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 heating standard.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. 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 2024.

The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/

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 tenancy commenced on 3 July 2021. The landlord did not provide healthy homes information to the tenant at the commencement of the tenancy, so the tenant was not aware the house was not compliant until after the tenancy commenced. The house did not meet the heating standard for the duration of the tenancy.

I find [The landlord/s] committed an unlawful act by not providing any form of fixed heating in the living area.

I am satisfied the landlord should have reasonably known he was required to meet the heating standard, that he intentionally did not ensure he was aware of his healthy homes standards obligations and that he complied with them, and it would be just to require the landlord to pay a sum of $1,200.00 in exemplary damages (one sixth of the total penalty available), and make the order accordingly because: a. The tenant has had to pay the additional costs of heating the home with a portable heater for the duration of the tenancy because of the landlord’s breach; b. The tenant was denied the opportunity to decide not to rent a non-compliant house because the landlord withheld that information from him; c. It is in the interests of the tenant to receive exemplary damages for the inconvenience and cost associated with living in a non-compliant home for 117 weeks; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their compliance with HHS obligations.

Further, I find the tenant should have received a rent rebate for the 117-weeks he has have had to live without fixed heating. I find it fair and reasonable for the tenant to receive a rent rebate of $25.00 per week for the period 3 July 2021 to 30 September 2023 (117 weeks). 25 x 117=an award of $2,925.00. Failure to lodge bond

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

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 Residential Tenancies Act 1986.

The landlord did not lodge the bond with the Bond Centre for the 117-week duration of the tenancy and failed to lodge the bond even after the landlord discovered he had committed an illegal act by holding on to the bond himself. The tenant’s application was filed on 11 December 2023. The landlord has had nearly 7 months since the date the application was lodge to secure the tenant’s bond by submitting it to the Bond Centre, but he did not. In late January 2024 he made some enquiries to try to return the bond to the tenant but never did.

The landlord says his brother was managing the property in the owner’s absence and he was not aware of the requirement to lodge the bond.

I find 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) Residential Tenancies Act 1986.

Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after her receipt of it.

The landlord could have sought advice from the Tenancy Services website and/or the Call Centre. The website contains bond forms and other such resources that the landlord could have used to inform her of what to do with the bond.

The obligations placed on a landlord to put the bond into the Bond centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlords to cover proven debts.

I find it would be just to require the landlord to pay a sum of $1,500.00 in exemplary damages because: a. The landlord intentionally did not ensure that the bond was lodged with the Bond Centre within 23 working days after 2 July 2021 and still had not lodged the bond with the Bond Centre as at the date of the hearing; b. The tenant is entitled to rely on the Bond Centre protecting their bond money that should have been placed in it on trust for the tenants’ benefit, unless it is proven the tenants owe the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money was not protected by the Bond Centre (a third independent party) for a period of 117 weeks during the tenancy and a further 40 weeks and 3 days after the tenancy ended, and it should have been. The landlord retained the bond without the tenants’ knowledge of who held their bond. The tenant called the Bond Centre to find out how to have the bond released at the end of her tenancy and that was the first he knew that the bond had never been lodged; c. It is in the interests of the tenants to receive exemplary damages for the landlord’s breach of its obligations to lodge the bond with the Bond Centre; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests.

I consider the award of the maximum penalty available because of the duration of the breach (157 weeks and 3 days), the continuity of breach after the landlord became aware of the breach when the tenant raised his concerns and the increased risk to the tenant of not being able to recover his bond when the money should have been on trust for him with the Bond Centre. Reimbursement of filing fee

Because both parties have substantially succeeded in their claims, I dismiss both claims for reimbursement of the filing fee as one filing fee cancels the other filing fee out. Name Suppression

The landlord and the tenant have applied for non-publication of their names and identifying details.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (See s95A of the RTA).

The landlord and the tenant have both substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the landlord or the tenant’s conduct or any other circumstances of the case.

Non-publication of both the tenant and landlord’s name and identifying details are ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4761637 — net $8,477.73 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning: (Paint Repairs at 10% of cost	$828.00		Carpet Cleaning: (Paint Repairs at 10% of cost
Carpet Cleaning: (Carpet Replacement at 10% of	$967.83		Carpet Cleaning: (Carpet Replacement at 10% of
Compensation: Fixed gas charges		$248.56	Fixed gas charges
Exemplary damages: Bond not lodged		$1,500.00	Bond not lodged
Exemplary damages: Failure to repair the bathroom		$1,200.00	Failure to repair the bathroom
ceiling		$1,200.00	ceiling
Exemplary damages: Breach of healthy homes		$2,925.00	Breach of healthy homes
Total award	$1,795.83	$7,073.56
Net award		$8,477.73
Total payable by Landlord to Tenant		$8,477.73

Both parties attended the hearing.

The tenant has applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee.

The landlord has made a cross application for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. LANDLORD’S CLAIMS

How much is owed for rent and water rates?

The tenancy ended on 30 September 2023.

Is the tenant responsible for the damage to the premises?

The amounts ordered are proved.

[The tenant] claims that the landlord has breached their obligations under section 45 (1)(b) of the Residential Tenancies Act 1986.

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .

General damages may also be awarded in the form or rent reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.

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).

I find [The landlord/s] committed an unlawful act by not providing any form of fixed heating in the living area.

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

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 Residential Tenancies Act 1986.

The landlord says his brother was managing the property in the owner’s absence and he was not aware of the requirement to lodge the bond.

I find 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) Residential Tenancies Act 1986.

Because both parties have substantially succeeded in their claims, I dismiss both claims for reimbursement of the filing fee as one filing fee cancels the other filing fee out. Name Suppression

The landlord and the tenant have applied for non-publication of their names and identifying details.

Non-publication of both the tenant and landlord’s name and identifying details are ordered.

Tenancy Tribunal case 4761637 — Healthy homes

At a glance

Tenancy Tribunal case 4761637 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions