Published tribunal order
Tenancy Tribunal case 4784057 — State of repair at Unit/Flat 2B, 17 Scanlan Street, Grey Lynn, Auckland 1021
Decided 22 Feb 2024 · Published 22 Feb 2024 · Application 4784057
- State of repair
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
- Lesina Nakhid-Schuster must pay [The tenant/s] the sum of $3,340.44 immediately as calculated in the table below.
- 44 Total award $3,340.44 Total payable by Landlord to Tenant $3,340.44
Reasons
- Both parties attended the hearing. The landlord appeared by teleconference.
- Primarily this is the tenants’ application. The landlord has filed a cross application but clarified at the start of the hearing that her application was as a vehicle to respond to the tenants’ claims. No Orders are sought by the landlord against the tenants. Bond
- [The tenant/s] claims the landlord did not lodge 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.
- 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.
- The tendency began on 1 August 2023. The bond was paid by the tenants and confirmation provided to the landlord on 30 June 2023.
- On 15 January 2024 the tenants were contemplating an application to the Tribunal in respect of other issues and noted that they could not provide the bond number on the application as they as they had not received it. On enquiring with the Bond Centre on 16 January 2024, they were told no bond had been lodged. The claim for failure to lodge the bond was included in their application, filed on 20 January 2024.
- The tenants then received an e-mail from the Bond Centre on 31 January 2024, confirming that the bond had been received.
- The landlord accepts having omitted to lodge the bond within the required time. She says was simply through oversight on her part. She also says that the tenants’ bond was never at risk as the money was always held in credit, in her rental account, not mingled with other moneys and that the bond was paid to the Bond Centre as soon as her oversight was brought to her attention.
- Lodging a tenant’s bond is a fundamental obligation on a landlord. I accept the landlord’s evidence that her breach of that obligation was an oversight and was rectified as soon as she became aware of it.
- I do find though that it is appropriate to make a modest award of exemplary damages in favour of the tenants, to recognise that the right to have their bond money held at the Bond Centre, not in the landlord’s bank account, was not respected until they themselves discovered the landlord’s oversight.
- That discovery compounded for them the sense of mistrust in the landlord that had led them to bring this application in the first place.
- It seems likely from the evidence that if the tenants had not made enquiries, the bond would still have remained with the landlord. The public interest requires that Landlords give priority to these fundamental matters. Failure to provide required information
- Section 13A RTA requires that a landlord provided in the agreement: a. an insulation statement; b. a statement of compliance with healthy home standards; and c. a statement confirming insurance details for the premises.
- Failure to comply with each of those information requirements is an unlawful act for which exemplary damages of up to $750.00 may be awarded (s.13(1F) and Schedule 1A RTA).
- That information was not provided in the agreement, which means that the landlord has committed an unlawful act.
- Moreover, the evidence satisfies me that the tenants specifically requested that information from the landlord without it ever having been provided. It seems from the correspondence that the landlord was not clear about what her obligations were and therefore was unclear about what information the tenants were seeking. That failure too is an unlawful act.
- There have been no measurable consequences or losses caused for the tenants by that information not being provided.
- As with other issues though, the tenants were put in the position of rightly feeling that their statutory rights were being disregarded and of having to confront the landlord to pursue those entitlements. Those are difficult measures which the tenants ought not to have had to undertake.
- I accept that there was no ill intent on the landlord’s part, more a lack of awareness of her legal responsibilities, likely compounded by other pressures on her time.
- It would seem to me unjust to make a separate award of exemplary damages against the landlord for each of those breaches which, as I view the evidence, were part of an overall failure to provide what was required in the agreement. In my view awarding the maximum available damages for one breach, to recognise that there were multiple breaches, compounded by the landlord’s failure to provide the information on request, would be a just remedy. Breach of Healthy Homes obligations/ failure to maintain
- In the first week of September the tenants contacted the landlord to raise concerns about the gas heater installed in the premises, namely a strong smell of gas when it was turned on, inability to turn the dial beyond minimum and the inability to blow hot air.
- The landlord replied saying that she would look into the issues the next day. Twelve days later, in the absence of a response from the landlord the tenants contacted the landlord again. After another 15 days, the tenants contacted the landlord again requesting an update.
- The landlord visited the property on 15 October 2023 and discovered that the issues were as described by the tenants - almost two months earlier.
- The landlord indicated an intention to repair the heater. The tenants had made enquiries and were able to provide the landlord with information about the Healthy Homes standards under which a non-flued gas heater like the one installed in the premises, was non-compliant.
- Nothing having been done by then, on 4 December 2023 the tenants contacted the Citizens Advice Bureau who raised with the tenants serious safety concerns about their living with a potentially unsafe gas heater.
- On 5 December 2023 the tenants requested a time frame for replacement of the heater. That request was followed up 14 days later in the absence of a response from the landlord. After further communications around the possible installation of a heat pump and after the landlord had looked at available options and installation issues, a compliant heater that was installed on 31 January 2024. The old gas heater was removed at the same time.
- The date by which these premises, which are in an apartment, were required to comply with the Healthy Homes hitting standard was not entirely clear. Given that understandable uncertainty, I do not consider it would be appropriate to make an award of exemplary damages against the landlord for not having had a compliant heater installed before 31 January 2024. A compliant heater is now installed.
- I do find however that the landlord breached her obligation under section 45(1)(b) to, “...provide and maintain the premises in a reasonable state of repair...”. The premises require a form of heating, which must also be in a reasonable state of repair and working order.
- Essentially, because the heater provided was not useable, the premises were provided without any form of heating from 3 September 2023 to 31 January 2024.
- The landlord says that the consequences for the tenants were minimal and that for the most part the issues they raised about the temperature at the premises were because they thought it was too hot and hoped for a heat pump, to cool the premises, which the landlord points out is beyond her obligation.
- The landlord points put those other issues raised by the tenants – a blocked bathroom sink and low shower head were quickly remedied by her and also that there was in fact no risk to the tenants from gas leaking from the heater – although this does not appear to have been determined until the gas heater was removed on 31 January 2024.
- Nevertheless, the delay in the landlord attending to a fundamental obligation to ensure the premises were provided with a functional form of heating, was beyond what could be considered reasonable.
- I accept the tenants’ evidence that there were periods in the early part of the tenancy where the temperature did really require use of heating which they did not have.
- Having heard from the parties, I do not think, with respect, that the landlord understands the effect on the tenants’ right to quiet enjoyment of premises, which they are entitled to in consideration for the rent they pay, of having to constantly engage with landlord to have their entitlements recognised and respected.
- There were unreasonably long delays in responding to the tenants’ legitimate queries. Given that and the steps required of the tenants to follow matters up. I consider it appropriate to award compensation to the tenants for the effect of the landlord’s breaches on their use and enjoyment of the premises, equal to two weeks rent.
- Due to the landlord’s failure to take reasonable steps within a reasonable time frame to meet a fundamental obligation to provide the premises with a form of heating, I consider that a modest award of exemplary damages, as against the maximum of $7,200.00, is also appropriate. Agency
- The tenants’ application also raises a number of instances where they say that the landlord was simply not meeting the standards to be expected, in terms of her knowledge of the premises and being able to instruct the tenants on matters such as the location of smoke alarms, how to open difficult doors, whether and how water use was to be paid for and so forth.
- The landlord says that she previously had the property managed by a property manager and so has not directly been involved in management of the tenancy.
- The tenants also take issue at the landlord using members of her family to deal with matters that she was unable to attend to herself. Again, with respect, I think the landlord lacks awareness of how unsettling it is for tenants to be put in the uncertain position dealing of dealing with different people whose level of authority to make decisions or undertake a work concerning the tenancy are not clear.
- While I understand the tenants’ concerns about those matters, they do not constitute direct breaches of the landlord’s responsibilities under the RTA or warrant an award of compensation or exemplary damages over and above those already made.
- As the tenants have succeeded with aspects of their claims, I award reimbursement of the filing fee.