Published tribunal order
Tenancy Tribunal case 4776577 — Exemplary damages at 170 Church Street, Onehunga, Auckland 1061
Decided 29 Apr 2024 · Published 29 Apr 2024 · Application 4776577
- Exemplary damages
Order
- The term of the fixed-term tenancy of [The tenant/s] at 170 Church Street, Onehunga, Auckland 1061 is reduced and now ends at 11.59pm, Saturday 13 January 2024.
- Clear Property Management Limited As Agent For (Bernard) Trustees In The Iridium Property Trust must pay [The tenant/s] $1,995.44 immediately.
Reasons
- Both parties attended the hearing.
- The tenant has applied for refund of the bond, a claim relating to the Healthy Homes standards, to be released from the fixed term tenancy and for compensation. Reduce fixed term
- The tenant has applied for reduction of the fixed-term tenancy due to end on 19 March 2024.
- The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.
- There has been an unforeseen change in the tenant's circumstances. Since the beginning of this tenancy the tenant has dealt with issues which she should not have needed to. These included moving into a house that needed cleaning (including stained carpet) and had no power (as the power cables under the house had been cut), having no oven for a week, rodents in the walls (including a dead one after the tenant laid bait), spending a cold winter without heating and having a neighbour that required her to complain several times to the Police. All these issues accumulated to a situation where the tenant did not feel that the premises were safe and healthy for herself and her three children.
- The tenant enquired about ending the fixed term tenancy early in November 2023. While the landlord mentioned that the tenant would need to pay a break lease fee no invoice was provided to the tenant and no agreement was reached about ending the tenancy early. The tenant told the landlord on 21 December 2023 that she planned to leave the tenancy 28 days later.
- There was no attempt by the landlord to reach an agreement in relation to the tenancy ending early and instead the landlord told the tenant to make an application to the Tenancy Tribunal. Alternatively, this issue could have been resolved between the parties if the landlord took steps to secure a new tenancy (before the tenant’s last day) and invoice her for the break lease fee.
- After giving the landlord notice the tenant managed to secure a new tenancy.
- The tenant would suffer severe hardship if the term of the tenancy were not reduced. The tenant is a solo parent to three dependent children. She says that she cannot afford to pay rent for two premises. She managed to borrow money from Work and Income New Zealand to cover the bond and initial rent for the new tenancy.
- The landlord did not provide any evidence of how, or if, the landlord would suffer hardship if the term is reduced.
- I find that the tenant’s hardship would be greater than the landlord’s hardship.
- Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.
- At the hearing the landlord said that the break lease fee was not sought from the tenant. Instead, the landlord wanted the tenant to pay rent up until the date that the new tenancy began (around 10 February 2024). The problem with this approach is that there is evidence that the landlord did not take reasonable steps to secure a new tenancy and instead waited until the tenant vacated the premises. It is therefore difficult to determine what reasonable compensation if any should be awarded to the landlord for any resulting loss. I make no award to the landlord as no effort was made to resolve this matter. Healthy Homes claim
- [The tenant/s] 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 draught stopping and heating standards.
- 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 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 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).
- In this case I have determined that the landlord failed to comply with the regulations in respect of draught stopping and heating.
- The draught stopping is in relation to doors, windows and an open fireplace. At the hearing the landlord acknowledged the breach was due to her oversight. It is quite clear that the landlord was aware of this issue because the Healthy Homes Assessment report dated 5 August 2020 states that the property is not compliant. Then on 19 January 2023 the landlord obtained a quote to carry out the draught proofing that was required. I note that this quote is less than two months before the tenancy commenced and the landlord chose not to carry out the required work. The landlord advised that the work was completed after this tenant left the premises but that is of no use to her.
- The heating is in relation to the landlord not having evidence of the heating capacity for the fireplace in the lounge and the landlord admitted not having this.
- The three fireplaces at the premises were problematic. One open fireplace was bordered up and another one should have been. The tenant was advised to use the fireplace in the lounge but at one stage it bellowed black smoke. The tenant then ceased using it. The landlord had employed a professional company to look at the fireplaces and carry out inspections and sweeping. It may be that this company’s work was inferior, but the landlord has discharged their liability by employing a professional company. That company also attended after the tenant reported the billowing smoke from the fireplace.
- The landlord installed a heat pump in September 2023, but that was after the compliance date.
- I find Clear Property Management Limited As Agent For (Bernard) Trustees In The Iridium Property Trust 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 interest of the other party, and the public interest. See section 109(3) RTA.
- Considering those factors, I have determined that a reasonable award is $1,200.00. I have taken account of the winter months that the tenant would have lived in draughty and cold premises.
- In relation to the Healthy Homes standards, the tenancy began on 16 March 2023 which means that the landlord had 120 days from the start of the tenancy to comply with the standards. The compliance date was therefore 14 July 2023.
- According to the Healthy Homes Assessment report dated 5 August 2020 the premises were non-compliant in relation to extractor fans (rangehood and bathroom), insulation (ceiling and underfloor) moisture ingress and drainage (ground vapour barrier) and draught stopping. In relation to the heating the report records that it is compliant but requires documentation as proof of heating capacity output.
- The insulation was resolved in April 2021 and at the hearing the landlord produced a statement of insulation which included the ground vapour barrier. In May 2023 the landlord installed ventilation including bathroom ventilation and a rangehood. The remaining outstanding issues were draught stopping and heating which I have made an award for.
- It is in the public interest for landlords to provide warm and draught free premises, but the landlord has not done so in this case. Compensation
- The landlord refunded the tenant one weeks rent for her having to carry out cleaning at the beginning of the tenancy and for the power not being operational when she moved in.
- At the hearing the tenant also referred to not having the use of the oven for around a week. The landlord was unable to provide evidence of when this was fixed other than to say it was the week after the issue came to light.
- In addition, the tenant carried out steps to address the rat issue such as laying bait and closing a significant gap under the skirting board in one of the rooms. From the photographs the gap is around 5 and a half centimetres. The tenant filled this gap with expanding foam. The landlord did not send pest control to the premises until after a smell was reported and a plumber suggested that it was a dead rat decaying.
- Both issues would have added to the tenant’s negative experience of living in these premises. The tenant should not have been without an oven and should not have needed to carry out the work of the landlord, such as filling unnecessary large holes where pests can enter.
- I therefore consider that the tenant should be compensated for these issues. I have awarded one weeks rent as compensation for the loss of amenity and work carried out on behalf of the landlord. Release of bond
- The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.