What was Tenancy Tribunal case 4789538 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $920.44 immediately, calculated as

How much money was awarded in case 4789538?

Compensation: HHS Heating: $50.00 awarded to tenant; Compensation: HHS Information: $100.00 awarded to tenant; Compensation: HHS moisture ingress/d…: $300.00 awarded to tenant; Compensation: Maintenance: $400.00 awarded to tenant; Compensation: Minor Change: $50.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4789538?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4789538?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10941335-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4789538 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $920.44 immediately, calculated as

How much money was awarded in case 4789538?

Compensation: HHS Heating: $50.00 awarded to tenant; Compensation: HHS Information: $100.00 awarded to tenant; Compensation: HHS moisture ingress/d…: $300.00 awarded to tenant; Compensation: Maintenance: $400.00 awarded to tenant; Compensation: Minor Change: $50.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4789538?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4789538?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10941335-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4789538 — Healthy homes

Claims and awards in Tenancy Tribunal application 4789538 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: maintenance	$400.00	maintenance
Compensation: HHS information	$100.00	HHS information
Compensation: HHS heating	$50.00	HHS heating
Compensation: HHS moisture ingress/drainage	$300.00	HHS moisture ingress/drainage
Compensation: minor change	$50.00	minor change
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

Claims and awards in Tenancy Tribunal application 4789538 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: maintenance	$400.00	maintenance
Compensation: HHS information	$100.00	HHS information
Compensation: HHS heating	$50.00	HHS heating
Compensation: HHS moisture ingress/drainage	$300.00	HHS moisture ingress/drainage
Compensation: minor change	$50.00	minor change
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

Order

[The landlord/s] must pay [The tenant/s] $920.44 immediately, calculated as shown in the table below.
All other claims are dismissed.

Reasons

The parties have attended two hearings. Both tenants, [The tenant/s] appeared at the first hearing. [The landlord/s], the owner and landlord attended with his daughter [The landlord’s support person]. There was no appearance by a representative from [The property management company 1]. Following the first hearing, the landlord was represented by counsel, [The landlord’s representative 1], who prepared detailed submissions on behalf of the landlord.
At the second hearing, both tenants attended, and the landlord was represented by [The landlord’s representative 2] from [The property management company 2], the current agent for [The landlord/s]. [The landlord’s representative] advises that counsel is no longer involved in the proceedings. Background
As noted in my earlier order, this is a fixed term tenancy which began on 16 September 2023 and was due to end on 16 September 2024. The rent at the start of the tenancy was $550.00 per week and a bond of $1,650.00 was paid. The landlord agreed to reduce the rent to $450.00 per week from 23 January 2024, in view of the additional work required to the premises.
The tenancy premises is part of a two-storey dwelling, and is located on the ground floor. [The landlord/s] live in the upstairs area.
The tenants applied for a work order to address various issues relating to the condition of the premises. Their claims include requests for repair and maintenance, claims under the Healthy Homes Standards, request for information, and permission to make minor changes. The tenants also claim a breach of quiet enjoyment. There has been email correspondence and written notices sent to the landlord. The tenants seek compensation and exemplary damages.
In response, the landlord provided oral evidence and also produced a Healthy Homes Standards (HHS) Report completed by G Force following an assessment of the premises.
After the first hearing, the following work order was issued: The landlord must carry out the following work to the premises, which must be completed by Monday 8 April 2024: •Repair the conservatory roof •Repair the roof leak over the back entrance •Repair or replace the gutters •Repair the wire mesh in the front and sliding door •Repair the shower, including the shower lining, to address the leaking shower •Replace the bathroom mirror •Repair the garage door lock •Install working and compliant smoke alarms
The hearing was adjourned part-heard. A further hearing was scheduled on 5 June 2024, but was adjourned and re-scheduled.
Following the second hearing, the parties provided an update on the work order. The tenant also filed another application, which was withdrawn. As explained, this withdrawn application cannot be considered at this hearing.
The landlord withdrew their application, number 4906356.
My findings regarding the tenants’ application are set out below. Legal framework
In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion. Where one party has proved that the other party has committed a defined unlawful act, before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest Maintenance and repair
The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with the healthy homes standards, and any relevant enactment in relation to buildings, health, and safety.
Breaching any of these obligations 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 of the RTA.
The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ... 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 the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be. 4 Compensation for maintenance and repair issues 1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d) 4 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085
The tenants must be able to prove, on the balance of probabilities, that the premises was not in a reasonable state of repair, and that the landlord had notice of the problem and failed to repair within a reasonable time. Taking into account the evidence and submissions of both parties, my findings are set out below.
At the start of the tenancy, the need for repair was identified and recorded in the tenancy agreement. Therefore, the tenants had notice of some issues that were acknowledged as needing to be remedied by the landlord. The conservatory roof was to be repaired within 6 months. There was also acknowledgement that the shower was to be relined, and the mirror to be re-sized. Other items included installation of a laundry tub, and new carpet in two bedrooms and the lounge/dining area. The landlord’s submissions indicate that the carpet and laundry tub were installed prior to the tenants moving in.
The landlord states that they wanted to attend to all the repairs before granting the tenancy. They have given evidence at the first hearing, which I accept, explaining why the tenancy was granted before the necessary work was completed. It is evident that they felt a sense of empathy towards the tenants’ situation in granting the tenancy.
There were delays in these repairs being completed, although it is acknowledged that some of the items were completed within a reasonable timeframe. However, after the 6 month period, the conservatory roof had still not been repaired, and therefore, until it was repaired, the tenants ought to be compensated.
The landlord compensated the tenants for the delays, and there was a rent reduction of $100.00 per week from January 2024.
Following the issuing of the work order, I find that, on the whole, the maintenance and repair issues were addressed by the landlord. While the tenants are not satisfied with the quality of some of the repairs, the detailed and comprehensive evidence produced by the landlord regarding completion of the work is preferred. In this regard I note the following: • Conservatory roof: this was repaired in May 2024, as shown in the invoice from [maintenance company]. The contractors removed the existing roof and installed a clear roof and flashing. • Roof leak over the back entrance: repaired in May 2024, the relevant invoice has been provided. • Gutters: the landlord states the gutters were repaired on 12 March 2024. The tenant does not consider the gutters to be compliant and refers to the G-Force report. However, it may be noted that the final G-Force report indicates all gutters were compliant. • Wire mesh in the front and sliding door: This was completed, and the relevant emails confirming completion have been provided. • Shower: some repairs were undertaken in April 2024, although the tenant is not satisfied that the lining was fixed. The relevant invoice dated 3 April 2024 details the work undertaken. • Bathroom mirror: the parties agree that this was addressed. There is an invoice from [maintenance company] dated 3 April 2024 noting the mirror was installed. • Garage door lock: this was repaired, as shown by the invoice dated 28 March 2024. • Smoke alarms: at the hearing, the tenants stated that they sought replacement smoke alarms, noting that one of them was not working. While not part of the tenants’ application, this was promptly remedied following the first hearing. The landlord’s evidence shows that an assessment was completed, and, following installation of additional alarms, the property was certified as being compliant from 21 March 2024. This is shown in the All Clear Certificate of Assessment and Compliance.
The tenant’s claim for compensation does not show any specific loss, however, the inconvenience and loss of amenity are relevant factors. Awards of compensation are generally modest. In this case, taking into account the nature of the breach, duration, the effect on the tenants, and the fact that the tenants have already been compensated with a rent reduction from January 2024, I consider that an award of $400.00 to be reasonable. Exemplary damages for maintenance and repair issues
The tenants also claim exemplary damages. For this to be awarded, the test for exemplary damages must be met. This is set out in section 109(3) of the RTA, and requires, as a precondition, that the person against whom the order is sought committed the unlawful act intentionally. An intentional act is a deliberate act, not a negligent or careless oversight, or an act resulting from incompetence.
In this case, I find that the required intent for exemplary damages is not met. While the landlord did not address all the maintenance and repair issues in a timely way, taking into account the landlord’s evidence, I am unable to find that the landlord turned their mind to the act and deliberately set out to commit it. In this regard I note that the landlord had planned to do repair work to the premises before the tenants moved in and, because of the tenants’ circumstances, were prepared to let them move in knowing that additional work was required. I also note that the health of [The landlord/s] deteriorated, and so this caused further delays. For these reasons, there is no separate award for exemplary damages. Healthy Homes Standards
There are two aspects to the tenants’ claims under the Healthy Homes Standards (HHS). One concerns the HHS statement in the tenancy agreement. The tenants claim the HHS information is incomplete. The second relates to failures to comply with the HHS in relation to the heating and moisture ingress/drainage. These issues are considered below.
Compliance dates for the HHS vary depending on the tenancy: • 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. • All boarding houses must comply by 1 July 2021. • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
In this case the tenancy began on 16 September 2023, so the premises must comply with the HHS within 120 days of the commencement of the tenancy. Healthy Homes statement
Under s 13A(1CA) of the RTA, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
In this case, the statements in the tenancy agreement concerning compliance with the HHS are incomplete. This has been acknowledged by the landlord. However, I also note the explanations given. I have considered whether exemplary damages ought to be awarded. But, in this case, having considered the matter overall, I find that the required intent is not present. However, there is a requirement that the landlord ensure that the information is complete, and in this case, it was not. Therefore, the tenants are to be compensated for the lack of HHS information, in the amount of $100.00. Heating standard
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. The HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded.
The tenants’ evidence is that a notice to remedy was sent to the landlord on 24 January 2024 and, on 29 February 2024, a compliant heat pump was installed. The installation of the heat pump is confirmed in the second G-Force report which records that the heat pump installation was completed on 29 February 2024. The landlord explained that prior to the tenants moving in, they had purchased a heater, which they believed was compliant. The heat pump was then installed, and the delay was due to issues with access to the premises.
Overall, in terms of the heating standard, the premises now complies, although at the start of the tenancy it did not. There were some delays in the landlord installing the compliant qualifying heater, and it was installed around one month after the compliance date. For this breach, the tenants are to be compensated, in the amount of $50.00. There is no separate award for exemplary damages. Moisture ingress and drainage
The moisture ingress and drainage standard requires that buildings comprising residential tenancies have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded.
The tenants noted issues with the conservatory roof leaking, the gutter leaking, the water tank on the balcony overflowing. The water tank has since been removed. Following the issuing of the work order, the repair issues were addressed by the landlord. I have taken into account the tenants’ own opinions on the HHS, the evidence provided for the hearing, and their oral and written submissions.
In terms of compliance with the HHS, I found the G-Force assessment reports to be persuasive. While G-Force was engaged by the landlord, I am satisfied that these reports provide relevant and independent evidence, to which I attach significant weight.
The first report, following an assessment in February 2024, identified that the property was not compliant with the HHS in terms of the moisture ingress/drainage standard. The report noted that the property was “missing sections of guttering and/or sections of guttering are broken, corroded, not fixed correctly or not connected to a downpipe.” The report provided further details, and recommendations for the required remedial work. It was further noted that the house was compliant in terms of the ground vapour barrier, since there was a concrete base and therefore, it was exempt.
The second G-Force report, after work was completed, concluded that the property had an efficient draining system. It was noted that the remediation work, in terms of the downpipes, were completed on 12 March 2024 by G-Force, and work on the conservatory was completed by an external contractor on 22 May 2024. All other aspects of the HHS were also found to be met.
The premises did not comply with the HHS at the start of the tenancy, and the timeframe of 120 days for compliance was not met by the landlord. Therefore, the landlord has been in breach of this requirement, and the tenants are to be compensated. It may be noted that some of the issues under this category were addressed as part of the landlord’s maintenance obligations. However, in terms of this specific breach, with reference to the HHS standards, and the timeframe for compliance, the amount of $300.00 is awarded in compensation. There is no separate award for exemplary damages, as the required intent, being the pre- condition for the award of exemplary damages, is not present. Breach of quiet enjoyment
The tenants claim the landlord has breached their quiet enjoyment of the premises. They note several instances where this has occurred. One such event was when [The tenant/s] was water blasting the driveway, and there was a request to remove rubbish. The tenants state this was the previous tenant’s rubbish. There was also an event on 5 November 2023, when they installed a shade sail, and the following day, the landlord complained that it was too high. They allege the landlord made a threatening shooting gesture from the balcony and yelled at them. In December 2023, there was an incident when washing the car, and in February 2024 involving the slamming of the door. Another instance was the installation of security cameras by the landlord in March 2024.
In response, [The landlord/s] states that the landlord found [The tenant/s] to be aggressive, relentless, and demanding, and as a result, they were fearful. As their daughter, she observed that they felt intimidated and anxious They had wanted to repair the property and provide a comfortable, healthy home. [The landlord/s] provided his evidence regarding the events, which is discussed below.
In terms of each of the incidents, I note the explanation given by the landlord concerning the balcony incident, when he wanted the pole to be lowered. The slamming of the door occurred because [The landlord/s] felt intimidated by [The tenant/s]. In terms of their approach to the incident involving the rubbish, I agree that there were better ways to communicate what was suitable for the inorganic rubbish collection. However, I accept the landlord’s reasoning for installation of security cameras, for their own personal safety, after a break in at their property.
Evidence concerning police involvement has also been provided, and it is clear that there has been an escalation of tensions between the parties, culminating in the incident of 19 March 2024, when a police report was filed following the assault of the landlord.
Section 38(1) of the RTA states that the tenant is entitled to have “quiet enjoyment” of the premises without interruption by the landlord or anyone acting on the landlord’s behalf. This provision imposes a limited duty on the landlord not to do anything to interrupt the tenant’s use of the premises. 5 Section 38(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 6 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.
Where this obligation has been breached in circumstances that amount to harassment, this is an unlawful act for which exemplary damages may be awarded. 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." 7 5 ‘Residential Tenancies: The Law and Practice’ 4 th edition, D. Grinlinton (2012) 6 Residential Tenancy Law in New Zealand S. Benson (2018) 7 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I have taken into account the evidence and submissions provided by both parties. In this case, in terms of their communication and behaviour towards each other, my observation is that there have been shortcomings on both sides. I accept that the landlord became overwhelmed with the volume of communication from the tenant. In view of the frequency and tone, it is understandable that the landlord felt intimidated and anxious. There are instances where each must take some responsibility for the escalation of tensions between themselves.
Both the tenants and landlord have communicated and behaved in ways that have tested the other party. While accepting that the tenants felt aggrieved by these incidents, overall, I am not able to find that there has been a breach of the tenants’ quiet enjoyment. Furthermore, I do not find the pattern of behaviour directed towards the tenants reaches the level of harassment. Accordingly, this claim is dismissed. Consent for minor change
[The tenant/s] claim the landlord has not responded to a written request for consent for a fixture, renovation, alteration or addition.
A landlord must respond to a written request for consent for a fixture, renovation alteration or addition within 21 days after receiving the request and indicate whether or not it is considered a minor change. If the landlord considers it to be more than a minor change the written response may extend the time for responding to the tenant’s request, but it must be responded to in a reasonable amount of time. See section s 42A of the RTA.
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 42A(7) and Schedule 1A of the RTA.
The tenants refer to a verbal agreement with the landlord to undertake some work at the premises. They wanted a written statement granting permission to undertake these minor changes, and were seeking retrospective permission from the landlord. The tenants did some painting to the premises, and the submissions prepared on behalf of the landlord indicate that the landlord compensated them for the equipment and tools.
The landlord states that the request was made in reverse order. He had not asked the tenant to do any maintenance. He acknowledges painting work was offered. But he did not want the tenant to do anything else.
In this case, due to the communication issues identified earlier, the landlord has explained that he did not respond. Part of the reason was the volume of communication the landlord received from the tenant. It is also clear that, due to the deterioration of their relationship with the tenants, the landlord was reluctant to allow them to do further work. Whatever the reasons, there is an obligation on the landlord to address the tenants’ request in a timely way. Therefore, some compensation for this breach is to be awarded, in the amount of $50.00. Other issues
The tenants have raised a number of other issues since filing their application, alleging further breaches by the landlord. These additional claims are not addressed in this order, since they were not part of the original application. Filing fee
As the tenants have been successful with a number of their claims, the landlord is to pay the tenant’s filing fee. Name suppression
An application for suppression has been made in this case by both parties. The Tribunal, having had regard to the interests of the parties and to the public interest, and noting that some claims being established, while others have not, orders suppression of the tenants’ and landlord’s name and identifying details.

Tenancy Tribunal case 4789538 — Healthy homes

At a glance

Tenancy Tribunal case 4789538 — Healthy homes

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions