What was Tenancy Tribunal case 4767260 about?

The tribunal order states: The parties’ name and identifying details including the tenancy address must

How much money was awarded in case 4767260?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4767260?

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

Where can I read the official tribunal order for case 4767260?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9981924-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4767260 about?

The tribunal order states: The parties’ name and identifying details including the tenancy address must

How much money was awarded in case 4767260?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4767260?

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

Where can I read the official tribunal order for case 4767260?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9981924-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4767260 — Rent arrears

Tenantcheck Insights

New Zealand Tenancy Tribunal Case 4767260 — Rent arrears | TenantCheck

Order

The parties’ name and identifying details including the tenancy address must not be published.
The claims are allowed as referred to in this order and the

Reasons

below. All other claims are dismissed.

[The tenant] must pay [the landlord] $12,313.90 immediately, calculated as set out in the table below: DescriptionLandlordTenant Rent arrears to 7 February 2024$22,361.40 Compensation: loss of amenity – 2.5 to 5% $5,347.50 Exemplary damages breach HHS - extractor fan $3,600.00 Exemplary damages - false information in TA $600.00 Interfering with quiet enjoyment post- 21/11/21 Subtotals:$22,361.40 $500.00 $10,047.50 Net award to landlord$12,313.90 Reasons:
Both parties attended the hearing. 1
The landlord had claimed for rent arrears.
The tenant had claimed the landlord failed to comply with the Healthy Homes Standards (HHS) 2 , lied about the ventilation HHS in the tenancy agreement, failed to provide and maintain the premises to a reasonable standard of repair, interfered with her reasonable privacy to the point of harassment, failed to issue her with a termination notice, and overcharged her for rent. Background
The tenancy lasted for a little over two years. It began on 26 October 2021 by oral agreement. It was formalised in writing on about 3 February 2022. The tenant eventually moved out of the premises on 9 January 2024. 3
The tenancy address is located near to Mt Eden Village and Mt Eden (Maungawhau). It would now be regarded as an inner-city suburb and is “double Grammar Zone”, being within zone for Auckland Grammar and Epsom Girls Grammar. It has generously-sized section of 1077m 2 , so about quarter-of-an- acre.
While the property is in a sought after location and has a huge section, the house is modest. It is an unrestored bungalow/villa hybrid built over one hundred years ago. It has three bedrooms and a floor area of 150m 2 . From the photographs, it is sound, but outdated and worn. Among other things, the back steps have been boarded over with ply, the weatherboards and wooden exterior members need washing and repainting.
However, it must have been a boon to the tenant that the landlord permitted the tenant and her family to keep two dogs, two cats, a bird, and a guinea pig.
The rent was initially $900.00 per week. When the tenancy was agreed in writing, the rent was set at $950.00 per week and the landlord agreed to maintain the lawns and garden. The landlord stored his mower, leaf blower, hedge trimmer, and other tools in the shed, for which he had a key. 1 This is a reserved decision. I heard this matter on 9 February 2024. 2 Namely, the Residential Tenancies (Healthy Homes Standards) Regulations 2019. 3 The landlord provided a copy of the parties’ communications, which confirms the following skeletal facts. A summary of the communications is attached as Appendix 1.
In the first couple of months of the tenancy, the landlord often at the property doing painting, minor maintenance, and the like. The tenant complained about this, and the landlord gave her a $500.00 discount on the rent.
After that initial two months, the landlord regularly went to the property to mow the lawns and tend the garden, but the landlord or contractors only went into the house a few times in response to the tenant’s requests for maintenance.
During the tenancy, the tenant reported a recurring problem of birds roosting in the eaves and roof space above the rear deck resulting in a lot of bird droppings in the outdoor living/dining space.
On one occasion, the landlord got up into the roof space and removed a nest. On another occasion, the landlord suggested putting up netting to stop the birds getting in, but the tenant preferred putting bird feeders in the trees to lure the birds away from the house.
Possibly due to the Covid lockdowns, the tenant’s business faltered, and she got increasingly into arrears. The landlord regularly politely messaged the tenant about the arrears, and she replied apologetically explaining the business’s issues were affecting her ability to pay the rent. The landlord accepted the tenant was genuinely struggling financially, but eventually suggested the tenant might have to move to a less expensive premises because of the financial strain he was suffering because of the increasing rent arrears.
By December 2023, the arrears had climbed to $17,000.00 and both parties were incredibly stressed. On 13 December 2023, the landlord said, “It is at the stage I need to try and protect my financial future because this is now pulling me under with you”. He declined to assure the tenant he could give her a positive verbal reference “when you have fallen so far behind in rent”.
On 13 December 2023, the tenant raised the bird problem and a number of previously unmentioned problems with the premises: For your next tenant you will need to address the plumbing with sewerage smell coming up through the shower on occasion, no ventilation in the kitchen and bird infestation I the roof causing us to have to walk through shit both sides of the entrance every day. The kitchen hot water cylinder temperature is illegal as well as the wiring configuration with plugs in the kitchen for the dishwasher. I told you a month ago just give me notice if you couldn’t wait so stop all the accusatory and inflammatory language. We have put up with the dodgy items all this time because we know you never fix things properly.
On 15 December 2023, the tenant messaged that, “The power and no extraction in the kitchen is a problem but we open the window to let the steam out...and the cords hanging above the stove I’ve never liked that”. The landlord responded that he would put an extractor fan in.
On 2 January 2024, the landlord applied to the Tribunal for termination and rent arrears of about $17,000.00.
The tenant moved out on 10 January 2024 emailing info@tenancy and the landlord that “I have left the property notice is effective immediately” and alphabetically listing a miscellany of 15 landlord breaches, “a” through to “o”.
The tenant submits that the tenant her family were at a severe disadvantage to the landlord. When they first moved in, the landlord was there all the time doing work, but the tenant, “Did not want a flatmate”. There were a lot of maintenance problems that were not addressed. They were “essentially trapped” because they got behind in rent and the landlord would not provide them with a positive reference so they and their pets could find a new place to live.
The tenant seeks compensation and exemplary damages which should be applied to the rent arrears. Issues for determination
The issues the Tribunal must decide are: 4 (a) What does the tenant owe for rent arrears? (b) Did the landlord fail to maintain the premises or to comply with the

HHS?

(c) Was the landlord’s HHS tenancy agreement information misleading? (d) Did the landlord interfere with the tenant’s reasonable peace, comfort, or privacy? (e) Can the Tribunal review the weekly rent?

What does the tenant owe for rent arrears?

The tenant submits that she should only have to pay rent to the date she moved out. However, the tenant did not give notice that she would move out until the day she left. Consequently, the rent arrears must be calculated from 28 days after the date she gave notice, which is to 7 February 2024.
The tenant says the landlord gave notice on 15 December 2023, but that was a 14-day notice to remedy rent arrears and was given at the tenant’s request. It emphatically stated: 4 I have collated these from the parties’ written materials, photographs, and oral submissions. See the Annexure for my summary of the parties’ written materials. This is not an eviction notice
The landlord provided a rent summary and gave oral evidence which proved the rent arrears are $22,361.40.

Did the landlord breach their maintenance or HHS obligations?

Legal principles

Under s 45 of the Residential Tenancies Act 1969 (RTA), landlords must ensure their premises meet certain basic standards.
Under s 45(1)(b) landlords maintain the premises in a reasonable state of repair: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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...
Under s 45(1)(bb), landlords must comply with the HHS which require the premises to be insulated, draught free, ventilated, protected from water ingress: (bb) comply with the healthy homes standards...
Breaching any of these s 45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 5
In respect to the obligation to repair, landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 6 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 7 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of 5 Residential Tenancies Act (RTA), s 45(1A) and Schedule 1A. 6 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 7 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 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...”
Landlords also have an obligation to repair things that are apparent from observation: 8 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
In respect to the other standards, breach does not depend on the landlord’s knowledge, an unlawful act occurs whenever the standards are not met. The landlord must simply comply with the standards. Lack of knowledge may however impact the landlord’s liability for exemplary damages because the unlawful act must have been committed intentionally for exemplary damages to be available. Discussion
I have listened to the parties’ submissions, viewed the photographs, and examined he parties’ correspondence.
The house would have been the “quarter acre paradise” in the 1950s but is showing signs of wear and tear and need of some TLC such as house washing and repainting. Nonetheless, the house appears generally maintained to a sound standard. The house weathered the 2023 Anniversary Weekend downpours without significant problems, which attests to its weather tightness.
However, the kitchen had no extractor fan. Where the extractor fan ought to have been there was simply an open light fitting hole in the ceiling with the ceiling insulation visible. The tenant felt that detritus and bird droppings might easily fall through the insulation into the food preparation and cooking area.
I consider the tenant’s concerns are understandable. While it is unlikely that bird droppings would get through, the kitchen should have had an extractor fan, and the hole in the ceiling above the stove was unacceptable.
The landlord knew that the kitchen needed an extractor fan but considered it was not necessary. That is not a reasonable excuse for breaching the HHS.
The house’s electrics were not in a reasonable state of repair. The stove should not have had a cord running above it. The entire battery of kitchen appliances should not have been running off a single multiplug electrical lead. There was also at least one broken electrical socket switch plate and other questionable electrical work, albeit none of it looks immediately hazardous. 8 See n 3.
The house’s grounds are expansive, so there is a lot of ground to maintain. That the tarseal was worn through in places is not of concern. The hole in the ground over the pipe is of concern, albeit the written communications do not indicate tenant reported the problem to the landlord until too late in the piece for him to address it during the tenancy.
The tenant now complains vehemently about mould. However, she did not complain of significant mould problems during the tenancy. The photographs show mould in the laundry and the bathroom, but it has not been shown that there was a water ingress issue or a lack of ventilation in those areas that contributed to the mould. Nor does mould appear to be emanating from the ceilings. It is surface mould that could be wiped off. Regular mould cleaning may be needed in a humid climate like Auckland’s even where the premises are well ventilated and dry. The bedroom ceilings and the lounge ceiling have small areas of superficial mould, but they are de minimis (trivial) in my opinion. The ceiling studs are extremely high in these rooms, so the ceilings were not cleaned during the tenancy. Yet there is hardly any mould at all in these rooms. That indicates the premises did not have mould issues symptomatic of deeper problems, such as water ingress or inadequate ventilation.
The tenant reported that the guttering was blocked to the point grass was growing on one occasion. However, the landlord promptly cleared the gutters on that occasion. That showed he would respond quickly to clean the gutters if required. Yet the parties’ correspondence does not show the gutters were otherwise in need of cleaning. .
The toilet’s walls and ceilings appear grimy. The tenant claimed the grime is mould. The landlord says the grime is dusty residue from his mower and the like. The toilet has permanently fixed louvres so the window in it cannot close. Given the constant ventilation it is more likely that the grime is a residue that is not mould. That the toilet louvres were fixed open is a dated design but is a structural aspect of the premises so does not breach the HHS draught standard.
The tenant produced photographs of shoes and a handbag affected by mould. However, it is common for clothing kept in cupboards to suffer from mould through no fault in the premises. It has not been shown that there was any defect in the premises or breach by the landlord contributing to mould.
There was an ongoing issue with nesting birds, but the landlord responded within a reasonable time to the tenant’s complaints about the birds. Similarly, the landlord was happy to address the hot water cylinder temperature problem. The tenant claims the cupboards had borer, but she did not complain about that until just before she moved out, and the landlord disagrees that there is borer. I do not find it proven that the borer was a significant problem.
The tenant claimed that sewage was backing up into shower. However, there was no cogent evidence of that.
The tenant had emailed the Tribunal that the roof spouting was constantly blocked, causing mould. I find that improbable because the tenant only mentioned that in her communications to the landlord once, and he promptly unblocked the spouting. If it the spouting had blocked again, the tenant would likely have reported it. Nor do the photographs show that water is seeping into the ceilings from the area of the spouting.
The tenant complains about the state of exterior of the house. It could have done with a wash and a repaint, but I do not consider that the state of deterioration was such that it impacted on the tenant to the extent she suffered loss for which she should be compensated.
The tenant referred to the house having no smoke alarms. I do not find that proven. Conclusion
I find the landlord failed to maintain the premises to a reasonable standard of repair in respect to the lack of an extractor fan and the hole in the kitchen ceiling and the standard of the electrics in the premises.
The lack of an extractor fan also breached the HHS ventilation standard which requires that kitchens have extractor fans. Remedies
The tenant suffered loss of amenity in the premises. I calculate the loss of amenity at 2.5 per cent of the weekly rent from the beginning of the tenancy to 22 January 2022, which is the date after which the landlord was required to meet the HHS (90 days after the tenancy began). 9 Thereafter, I calculate the loss at 5 per cent for the lack of a kitchen extractor fan for the lack of an extractor fan in the kitchen. I have accounted for the change in weekly rent from $900.00 to $950.00 per week.
The total amount ordered for loss of amenity is $5,347.50.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, 9 Residential Tenancies (Healthy Homes Standards) Regulations 2019. having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. 10
The landlord’s breaches of s 45 were intentional. I consider the deliberate breach of the HHS requires the Tribunal in the public interest to impose a condign award to deter other landlords who might consider deliberately departing from the standards. It is no excuse that the tenant was agreeable to the non-compliance or initially did not feel the breach would much affect her.
The Tribunal orders exemplary damages in the amount of $3,600.00 Was the landlord’s HHS tenancy agreement information misleading?
The landlord accepted the information he provided in the tenancy agreement about the kitchen having an extractor fan was misleading.
That was an unlawful act which carries exemplary damages up to a maximum of $900.00. 11
For similar reasons to those given in respect to the exemplary damages for the landlord’s related breach, the Tribunal orders the landlord to pay exemplary damages of $600.00. Did the landlord interfere with the tenant’s reasonable peace, or privacy? Legal principles
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 12
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. 13
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 14
Black’s Law Dictionary 15 defines “harassment” as: 10 RTA, s 109(3) 11 RTA, s 13A(1F)(b) and Schedule 1A. 12 RTA, s 38(2). 13 s 38(3) and Schedule 1A of the RTA. 14 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
The New Oxford Dictionary of English“ 16 defines “harass” as: subject to aggressive pressure or intimidation”. Discussion
At the beginning of the tenancy, the landlord was at the premises to a degree that interfered with the tenant’s reasonable peace, comfort, and privacy due to being at the premises frequently to carry out repairs and improvements.
The landlord gave the tenant a rent credit of $500.00, which the tenant accepted. There was accord and satisfaction for the interference at that point. However, the narrative emerging from the text messages indicate that the landlord continued working on the premises after the initial period up to 21 November 2021.
I consider there was a further interference with the tenant’s reasonable peace after the initial period for which the tenant should be compensated.
The tenant complains the landlord kept his lawn mowing gear and garden tools in the premises’ uninsulated dilapidated (if quaint) shed. Nothing arises from this. It was implicit in the tenancy agreement that the landlord would keep his mower and similar tools at the premises to fulfil his promise to mow the grounds. 17 This was demanding job given the size of the section and the amount of grass. It would have been odd if the tenant had expected to transport a lawn mower when there was a perfectly suitable and available place for it at the premises. Nor did she complain about the arrangement until the very end of the tenancy.
The tenant considers the landlord’s insistence of mowing the lawns prior to Christmas 2023 was an interference were her reasonable privacy. The parties had fallen into dispute by this time, which perhaps was a factor that in the tenant’s adamant refusal to consent on this occasion. However, under s 48(7) “land” is not part of the premises that requires notice to be formally given. In any event, the landlord gave written notice of the mowing which was necessary given the grass length and upcoming holiday. I do not consider the mowing was an interference with the tenant’s reasonable privacy in the circumstances. 15 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 16 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). 17 The tenant provided further photographs of he shed and other parts of the property after the hearing date. The landlord objected to the late evidence, but it did not impact the Tribunal’s decision,
Viewing the communications and hearing from the parties, I am left with the clear impression that the landlord was unfailingly polite and appropriate in his communications with the tenant. I do not consider that he coerced the tenant or prevailed upon the tenant in any way that amounted to anything in the nature of harassment.
The tenant blames the landlord and the premises for eczema and skin conditions as well as her mental health problems. I do not doubt that the tenant suffers from these conditions, but they have not been sheeted home to the landlord or faults in the premises. The tenant was supporting three young children and several pets while working ceaselessly to keep her business afloat and to pay the family’s living costs. The pressure on the tenant was immense quite aside from the issues with the premises, which while significant were not egregious. Conclusion
The tenant should be compensated for the landlord’s ongoing presence at the premises to carry out work after the initial period for which the landlord compensated her for in 2021.
The Tribunal orders the landlord to pay the tenant $500.00 for loss of amenity in that regard.
Harassment was not proven. Exemplary damages are therefore not available.

Can the Tribunal review the weekly rent?

The Tribunal has the power to review rent in certain circumstances. Section 25 of the RTA relevantly provides: 25 Market rent (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (2) (2) Notwithstanding anything in subsection (1), no application may be made under that subsection in respect of the rent payable under a fixed-term tenancy later than 3 months after— (a) the date of the commencement of the tenancy or (in the case of a tenancy that was subsisting immediately before commencement of this Act) the date of the commencement of this Act; or (b) the date of the last review of rent...
The tenant’s application was not filed within three months after the commencement of the tenancy or rent review, so the Tribunal cannot review the rent. Non-publication
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.
Both parties have been substantially successful in the proceedings. I do not consider that publication is in the public interest of is justified by the parties’ conduct, or any other circumstances of the case.
Non-publication of the parties’ names and identifying details is ordered and includes the tenancy address.

Order

The parties’ name and identifying details including the tenancy address must not be published.
The claims are allowed as referred to in this order and the

Reasons

below. All other claims are dismissed.

[The tenant] must pay [the landlord] $12,313.90 immediately, calculated as set out in the table below: DescriptionLandlordTenant Rent arrears to 7 February 2024$22,361.40 Compensation: loss of amenity – 2.5 to 5% $5,347.50 Exemplary damages breach HHS - extractor fan $3,600.00 Exemplary damages - false information in TA $600.00 Interfering with quiet enjoyment post- 21/11/21 Subtotals:$22,361.40 $500.00 $10,047.50 Net award to landlord$12,313.90 Reasons:
Both parties attended the hearing. 1
The landlord had claimed for rent arrears.
The tenant had claimed the landlord failed to comply with the Healthy Homes Standards (HHS) 2 , lied about the ventilation HHS in the tenancy agreement, failed to provide and maintain the premises to a reasonable standard of repair, interfered with her reasonable privacy to the point of harassment, failed to issue her with a termination notice, and overcharged her for rent. Background
The tenancy lasted for a little over two years. It began on 26 October 2021 by oral agreement. It was formalised in writing on about 3 February 2022. The tenant eventually moved out of the premises on 9 January 2024. 3
The tenancy address is located near to Mt Eden Village and Mt Eden (Maungawhau). It would now be regarded as an inner-city suburb and is “double Grammar Zone”, being within zone for Auckland Grammar and Epsom Girls Grammar. It has generously-sized section of 1077m 2 , so about quarter-of-an- acre.
While the property is in a sought after location and has a huge section, the house is modest. It is an unrestored bungalow/villa hybrid built over one hundred years ago. It has three bedrooms and a floor area of 150m 2 . From the photographs, it is sound, but outdated and worn. Among other things, the back steps have been boarded over with ply, the weatherboards and wooden exterior members need washing and repainting.
However, it must have been a boon to the tenant that the landlord permitted the tenant and her family to keep two dogs, two cats, a bird, and a guinea pig.
The rent was initially $900.00 per week. When the tenancy was agreed in writing, the rent was set at $950.00 per week and the landlord agreed to maintain the lawns and garden. The landlord stored his mower, leaf blower, hedge trimmer, and other tools in the shed, for which he had a key. 1 This is a reserved decision. I heard this matter on 9 February 2024. 2 Namely, the Residential Tenancies (Healthy Homes Standards) Regulations 2019. 3 The landlord provided a copy of the parties’ communications, which confirms the following skeletal facts. A summary of the communications is attached as Appendix 1.
In the first couple of months of the tenancy, the landlord often at the property doing painting, minor maintenance, and the like. The tenant complained about this, and the landlord gave her a $500.00 discount on the rent.
After that initial two months, the landlord regularly went to the property to mow the lawns and tend the garden, but the landlord or contractors only went into the house a few times in response to the tenant’s requests for maintenance.
During the tenancy, the tenant reported a recurring problem of birds roosting in the eaves and roof space above the rear deck resulting in a lot of bird droppings in the outdoor living/dining space.
On one occasion, the landlord got up into the roof space and removed a nest. On another occasion, the landlord suggested putting up netting to stop the birds getting in, but the tenant preferred putting bird feeders in the trees to lure the birds away from the house.
Possibly due to the Covid lockdowns, the tenant’s business faltered, and she got increasingly into arrears. The landlord regularly politely messaged the tenant about the arrears, and she replied apologetically explaining the business’s issues were affecting her ability to pay the rent. The landlord accepted the tenant was genuinely struggling financially, but eventually suggested the tenant might have to move to a less expensive premises because of the financial strain he was suffering because of the increasing rent arrears.
By December 2023, the arrears had climbed to $17,000.00 and both parties were incredibly stressed. On 13 December 2023, the landlord said, “It is at the stage I need to try and protect my financial future because this is now pulling me under with you”. He declined to assure the tenant he could give her a positive verbal reference “when you have fallen so far behind in rent”.
On 13 December 2023, the tenant raised the bird problem and a number of previously unmentioned problems with the premises: For your next tenant you will need to address the plumbing with sewerage smell coming up through the shower on occasion, no ventilation in the kitchen and bird infestation I the roof causing us to have to walk through shit both sides of the entrance every day. The kitchen hot water cylinder temperature is illegal as well as the wiring configuration with plugs in the kitchen for the dishwasher. I told you a month ago just give me notice if you couldn’t wait so stop all the accusatory and inflammatory language. We have put up with the dodgy items all this time because we know you never fix things properly.
On 15 December 2023, the tenant messaged that, “The power and no extraction in the kitchen is a problem but we open the window to let the steam out...and the cords hanging above the stove I’ve never liked that”. The landlord responded that he would put an extractor fan in.
On 2 January 2024, the landlord applied to the Tribunal for termination and rent arrears of about $17,000.00.
The tenant moved out on 10 January 2024 emailing info@tenancy and the landlord that “I have left the property notice is effective immediately” and alphabetically listing a miscellany of 15 landlord breaches, “a” through to “o”.
The tenant submits that the tenant her family were at a severe disadvantage to the landlord. When they first moved in, the landlord was there all the time doing work, but the tenant, “Did not want a flatmate”. There were a lot of maintenance problems that were not addressed. They were “essentially trapped” because they got behind in rent and the landlord would not provide them with a positive reference so they and their pets could find a new place to live.
The tenant seeks compensation and exemplary damages which should be applied to the rent arrears. Issues for determination
The issues the Tribunal must decide are: 4 (a) What does the tenant owe for rent arrears? (b) Did the landlord fail to maintain the premises or to comply with the

HHS?

What does the tenant owe for rent arrears?

The tenant submits that she should only have to pay rent to the date she moved out. However, the tenant did not give notice that she would move out until the day she left. Consequently, the rent arrears must be calculated from 28 days after the date she gave notice, which is to 7 February 2024.
The tenant says the landlord gave notice on 15 December 2023, but that was a 14-day notice to remedy rent arrears and was given at the tenant’s request. It emphatically stated: 4 I have collated these from the parties’ written materials, photographs, and oral submissions. See the Annexure for my summary of the parties’ written materials. This is not an eviction notice
The landlord provided a rent summary and gave oral evidence which proved the rent arrears are $22,361.40.

Did the landlord breach their maintenance or HHS obligations?

Legal principles

Under s 45 of the Residential Tenancies Act 1969 (RTA), landlords must ensure their premises meet certain basic standards.
Under s 45(1)(b) landlords maintain the premises in a reasonable state of repair: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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...
Under s 45(1)(bb), landlords must comply with the HHS which require the premises to be insulated, draught free, ventilated, protected from water ingress: (bb) comply with the healthy homes standards...
Breaching any of these s 45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 5
In respect to the obligation to repair, landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 6 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 7 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of 5 Residential Tenancies Act (RTA), s 45(1A) and Schedule 1A. 6 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 7 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 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...”
Landlords also have an obligation to repair things that are apparent from observation: 8 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
In respect to the other standards, breach does not depend on the landlord’s knowledge, an unlawful act occurs whenever the standards are not met. The landlord must simply comply with the standards. Lack of knowledge may however impact the landlord’s liability for exemplary damages because the unlawful act must have been committed intentionally for exemplary damages to be available. Discussion
I have listened to the parties’ submissions, viewed the photographs, and examined he parties’ correspondence.
The house would have been the “quarter acre paradise” in the 1950s but is showing signs of wear and tear and need of some TLC such as house washing and repainting. Nonetheless, the house appears generally maintained to a sound standard. The house weathered the 2023 Anniversary Weekend downpours without significant problems, which attests to its weather tightness.
However, the kitchen had no extractor fan. Where the extractor fan ought to have been there was simply an open light fitting hole in the ceiling with the ceiling insulation visible. The tenant felt that detritus and bird droppings might easily fall through the insulation into the food preparation and cooking area.
I consider the tenant’s concerns are understandable. While it is unlikely that bird droppings would get through, the kitchen should have had an extractor fan, and the hole in the ceiling above the stove was unacceptable.
The landlord knew that the kitchen needed an extractor fan but considered it was not necessary. That is not a reasonable excuse for breaching the HHS.
The house’s electrics were not in a reasonable state of repair. The stove should not have had a cord running above it. The entire battery of kitchen appliances should not have been running off a single multiplug electrical lead. There was also at least one broken electrical socket switch plate and other questionable electrical work, albeit none of it looks immediately hazardous. 8 See n 3.
The house’s grounds are expansive, so there is a lot of ground to maintain. That the tarseal was worn through in places is not of concern. The hole in the ground over the pipe is of concern, albeit the written communications do not indicate tenant reported the problem to the landlord until too late in the piece for him to address it during the tenancy.
The tenant now complains vehemently about mould. However, she did not complain of significant mould problems during the tenancy. The photographs show mould in the laundry and the bathroom, but it has not been shown that there was a water ingress issue or a lack of ventilation in those areas that contributed to the mould. Nor does mould appear to be emanating from the ceilings. It is surface mould that could be wiped off. Regular mould cleaning may be needed in a humid climate like Auckland’s even where the premises are well ventilated and dry. The bedroom ceilings and the lounge ceiling have small areas of superficial mould, but they are de minimis (trivial) in my opinion. The ceiling studs are extremely high in these rooms, so the ceilings were not cleaned during the tenancy. Yet there is hardly any mould at all in these rooms. That indicates the premises did not have mould issues symptomatic of deeper problems, such as water ingress or inadequate ventilation.
The tenant reported that the guttering was blocked to the point grass was growing on one occasion. However, the landlord promptly cleared the gutters on that occasion. That showed he would respond quickly to clean the gutters if required. Yet the parties’ correspondence does not show the gutters were otherwise in need of cleaning. .
The toilet’s walls and ceilings appear grimy. The tenant claimed the grime is mould. The landlord says the grime is dusty residue from his mower and the like. The toilet has permanently fixed louvres so the window in it cannot close. Given the constant ventilation it is more likely that the grime is a residue that is not mould. That the toilet louvres were fixed open is a dated design but is a structural aspect of the premises so does not breach the HHS draught standard.
The tenant produced photographs of shoes and a handbag affected by mould. However, it is common for clothing kept in cupboards to suffer from mould through no fault in the premises. It has not been shown that there was any defect in the premises or breach by the landlord contributing to mould.
There was an ongoing issue with nesting birds, but the landlord responded within a reasonable time to the tenant’s complaints about the birds. Similarly, the landlord was happy to address the hot water cylinder temperature problem. The tenant claims the cupboards had borer, but she did not complain about that until just before she moved out, and the landlord disagrees that there is borer. I do not find it proven that the borer was a significant problem.
The tenant claimed that sewage was backing up into shower. However, there was no cogent evidence of that.
The tenant had emailed the Tribunal that the roof spouting was constantly blocked, causing mould. I find that improbable because the tenant only mentioned that in her communications to the landlord once, and he promptly unblocked the spouting. If it the spouting had blocked again, the tenant would likely have reported it. Nor do the photographs show that water is seeping into the ceilings from the area of the spouting.
The tenant complains about the state of exterior of the house. It could have done with a wash and a repaint, but I do not consider that the state of deterioration was such that it impacted on the tenant to the extent she suffered loss for which she should be compensated.
The tenant referred to the house having no smoke alarms. I do not find that proven. Conclusion
I find the landlord failed to maintain the premises to a reasonable standard of repair in respect to the lack of an extractor fan and the hole in the kitchen ceiling and the standard of the electrics in the premises.
The lack of an extractor fan also breached the HHS ventilation standard which requires that kitchens have extractor fans. Remedies
The tenant suffered loss of amenity in the premises. I calculate the loss of amenity at 2.5 per cent of the weekly rent from the beginning of the tenancy to 22 January 2022, which is the date after which the landlord was required to meet the HHS (90 days after the tenancy began). 9 Thereafter, I calculate the loss at 5 per cent for the lack of a kitchen extractor fan for the lack of an extractor fan in the kitchen. I have accounted for the change in weekly rent from $900.00 to $950.00 per week.
The total amount ordered for loss of amenity is $5,347.50.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, 9 Residential Tenancies (Healthy Homes Standards) Regulations 2019. having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. 10
The landlord’s breaches of s 45 were intentional. I consider the deliberate breach of the HHS requires the Tribunal in the public interest to impose a condign award to deter other landlords who might consider deliberately departing from the standards. It is no excuse that the tenant was agreeable to the non-compliance or initially did not feel the breach would much affect her.
The Tribunal orders exemplary damages in the amount of $3,600.00 Was the landlord’s HHS tenancy agreement information misleading?
The landlord accepted the information he provided in the tenancy agreement about the kitchen having an extractor fan was misleading.
That was an unlawful act which carries exemplary damages up to a maximum of $900.00. 11
For similar reasons to those given in respect to the exemplary damages for the landlord’s related breach, the Tribunal orders the landlord to pay exemplary damages of $600.00. Did the landlord interfere with the tenant’s reasonable peace, or privacy? Legal principles
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 12
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. 13
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 14
Black’s Law Dictionary 15 defines “harassment” as: 10 RTA, s 109(3) 11 RTA, s 13A(1F)(b) and Schedule 1A. 12 RTA, s 38(2). 13 s 38(3) and Schedule 1A of the RTA. 14 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
The New Oxford Dictionary of English“ 16 defines “harass” as: subject to aggressive pressure or intimidation”. Discussion
At the beginning of the tenancy, the landlord was at the premises to a degree that interfered with the tenant’s reasonable peace, comfort, and privacy due to being at the premises frequently to carry out repairs and improvements.
The landlord gave the tenant a rent credit of $500.00, which the tenant accepted. There was accord and satisfaction for the interference at that point. However, the narrative emerging from the text messages indicate that the landlord continued working on the premises after the initial period up to 21 November 2021.
I consider there was a further interference with the tenant’s reasonable peace after the initial period for which the tenant should be compensated.
The tenant complains the landlord kept his lawn mowing gear and garden tools in the premises’ uninsulated dilapidated (if quaint) shed. Nothing arises from this. It was implicit in the tenancy agreement that the landlord would keep his mower and similar tools at the premises to fulfil his promise to mow the grounds. 17 This was demanding job given the size of the section and the amount of grass. It would have been odd if the tenant had expected to transport a lawn mower when there was a perfectly suitable and available place for it at the premises. Nor did she complain about the arrangement until the very end of the tenancy.
The tenant considers the landlord’s insistence of mowing the lawns prior to Christmas 2023 was an interference were her reasonable privacy. The parties had fallen into dispute by this time, which perhaps was a factor that in the tenant’s adamant refusal to consent on this occasion. However, under s 48(7) “land” is not part of the premises that requires notice to be formally given. In any event, the landlord gave written notice of the mowing which was necessary given the grass length and upcoming holiday. I do not consider the mowing was an interference with the tenant’s reasonable privacy in the circumstances. 15 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 16 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). 17 The tenant provided further photographs of he shed and other parts of the property after the hearing date. The landlord objected to the late evidence, but it did not impact the Tribunal’s decision,
Viewing the communications and hearing from the parties, I am left with the clear impression that the landlord was unfailingly polite and appropriate in his communications with the tenant. I do not consider that he coerced the tenant or prevailed upon the tenant in any way that amounted to anything in the nature of harassment.
The tenant blames the landlord and the premises for eczema and skin conditions as well as her mental health problems. I do not doubt that the tenant suffers from these conditions, but they have not been sheeted home to the landlord or faults in the premises. The tenant was supporting three young children and several pets while working ceaselessly to keep her business afloat and to pay the family’s living costs. The pressure on the tenant was immense quite aside from the issues with the premises, which while significant were not egregious. Conclusion
The tenant should be compensated for the landlord’s ongoing presence at the premises to carry out work after the initial period for which the landlord compensated her for in 2021.
The Tribunal orders the landlord to pay the tenant $500.00 for loss of amenity in that regard.
Harassment was not proven. Exemplary damages are therefore not available.

Can the Tribunal review the weekly rent?

The Tribunal has the power to review rent in certain circumstances. Section 25 of the RTA relevantly provides: 25 Market rent (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (2) (2) Notwithstanding anything in subsection (1), no application may be made under that subsection in respect of the rent payable under a fixed-term tenancy later than 3 months after— (a) the date of the commencement of the tenancy or (in the case of a tenancy that was subsisting immediately before commencement of this Act) the date of the commencement of this Act; or (b) the date of the last review of rent...
The tenant’s application was not filed within three months after the commencement of the tenancy or rent review, so the Tribunal cannot review the rent. Non-publication
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.
Both parties have been substantially successful in the proceedings. I do not consider that publication is in the public interest of is justified by the parties’ conduct, or any other circumstances of the case.
Non-publication of the parties’ names and identifying details is ordered and includes the tenancy address.

Tenancy Tribunal case 4767260 — Rent arrears

Tenancy Tribunal case 4767260 — Rent arrears

Order

Reasons

HHS?

What does the tenant owe for rent arrears?

Did the landlord breach their maintenance or HHS obligations?

Can the Tribunal review the weekly rent?

Order

Reasons

HHS?

What does the tenant owe for rent arrears?

Did the landlord breach their maintenance or HHS obligations?

Can the Tribunal review the weekly rent?