What was Tenancy Tribunal case 4791759 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4791759?

Compensation: Failure To Maintain: $6,350.00 awarded to tenant; Rent Arrears: $1,208.57 awarded to landlord; Water Rates: $491.93 awarded to landlord

What type of tenancy dispute was case 4791759?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4791759?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11513324-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4791759 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4791759?

Compensation: Failure To Maintain: $6,350.00 awarded to tenant; Rent Arrears: $1,208.57 awarded to landlord; Water Rates: $491.93 awarded to landlord

What type of tenancy dispute was case 4791759?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4791759?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11513324-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4791759 — State of repair

Claims and awards in Tenancy Tribunal application 4791759 — net $4,649.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 23 July 2024	$1,208.57		Rent arrears to 23 July 2024
Water rates (by consent	$491.93		Water rates (by consent
Compensation: failure to maintain		$6,350.00	failure to maintain
Total award	$1,700.50	$6,350.00
Net award		$4,649.50
Total payable by Landlord to Tenant		$4,649.50

Claims and awards in Tenancy Tribunal application 4791759 — net $4,649.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 23 July 2024	$1,208.57		Rent arrears to 23 July 2024
Water rates (by consent	$491.93		Water rates (by consent
Compensation: failure to maintain		$6,350.00	failure to maintain
Total award	$1,700.50	$6,350.00
Net award		$4,649.50
Total payable by Landlord to Tenant		$4,649.50

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the landlord and tenants’ names and identifying details.
The Bond Centre is to pay the bond of $2,760.00 ([Bond number suppressed]) to [The tenant/s] immediately.
[The landlord/s] must pay [The tenant/s] $4,649.50 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. [Tenant 1] and [Tenant 2] appeared on behalf of all three tenants. The landlord was represented by [ Property Manager 1] and [Property Manager 2].
Both parties have filed claims.
The tenant’s claims (as originally filed and as amended following the end of the tenancy) are as follows: a. That the landlord failed to maintain the property: i. The carpet flooded due to a leak in the back of the dishwasher; ii. The dishwasher took months to repair and then stopped working and later had to be replaced which took 3 weeks; iii. The fence was on a lean following flooding; iv. There were holes in the external cladding; v. A window in the stairwell leaked and became mouldy; vi. Blinds were broken, some were eventually fixed but the blinds over the French doors remained broken throughout; vii. The toilet extractor fan was broken and never fixed; viii. There was mould on the wall in the stairwell where there was a leak; and ix. The French doors had a gap underneath. b. The property was contaminated with asbestos and they were not kept informed; c. The landlord’s notice to end the tenancy on the basis that extensive renovations were required was retaliatory; d. The landlord’s tradespeople breached their quiet enjoyment of the property; e. The landlord had advised that they would increase the rent if the tenants were to enter into a new tenancy following extensive works as the market value would have increased; and f. They have not yet received their bond.
The landlord’s claims are as follows: a. Rent arrears in the amount of $1,208.57 being rent from 12 July 2024 to 23 July 2024 as the tenants did not give 28 days’ notice as required before moving out; and b. Water arrears in the amount of $491.93 being water owing from 12 June 2024 (less a credit of $112.50 being a credit applied for power and water as compensation in relation to the tenants’ claim in paragraph 3(a)(i) above). Onus and evidence
Each party bears the onus of proving their claim to the civil standard (on the balance of probabilities).
For the sake of brevity I have not referred to all of the evidence filed and the evidence given at the hearing. However the parties can be assured that I have carefully reviewed all of the evidence when preparing this decision. Background
The tenancy began on 11 February 2022. The rent was initially $690 per week and was $705 per week by the end of the tenancy. There were some outstanding maintenance issues when the tenancy began and further issues arose during the tenancy. The tenants filed a claim on 25 January 2024 and while some issues were then resolved the landlord later gave a 90 day notice to the tenants on the basis that they had to do extensive renovations. The tenants moved out on 12 July 2024. Tenants’ claims Failure to maintain
The tenants say that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 to provide and maintain the premises in a reasonable state of repair. Carpet flooding due to dishwasher
The tenants said that in July 2023 the carpet in the lounge became very wet. They said that after some investigation the landlord discovered that there was a leak at the back of the dishwasher and that they had to live with wet carpet and dehumidifiers for approximately six weeks.
The landlord accepted that there had been leak in the back of the dishwasher but said that initially it was difficult to determine the cause. The landlord explained that: a. They were advised of the leak on 10 July 2023 and sent out a handyman the same day to investigate; b. They sent a work order to Chemdry on 11 July 2023 but Chemdry could not attend immediately (due to recent weather events) but when they attended on 19 July 2023 they said that they would not dry the carpet without an asbestos test first being done on the kitchen vinyl. c. The landlord considered the kitchen vinyl to be irrelevant as the drying was to take place in the lounge, so they engaged JAE who attended on the first available date (27 July 2023). JAE identified the cause of the leak. d. On 27 July 2023 a plumber was engaged who attended the next day (invoice produced). e. The drying continued and was completed on 7 August 2024.
The landlord acknowledged that it had taken nearly one month to fully resolve the issue but said that carpet drying contractors were in high demand due to recent extreme weather events, and that the carpet drying inevitably took some time.
The landlord said that they had applied a credit of $112.50 to the tenants for the water leak and the electricity used to dry the carpet.
I do not consider that there has been any breach of the landlord’s obligations. The landlord acted in a timely manner given the circumstances. This claim is not proven and is dismissed. Dishwasher repair
The tenants said that when the dishwasher hose broke they encouraged the landlord to replace it as it was old and it took some time to repair as a part had to be ordered. They said that the landlord ended up having to replace the dishwasher anyway as the dishwasher broke down again.
The landlord said that the dishwasher was not particularly old and that it is always difficult to know whether to repair or replace a product. They say that they were notified that the dishwasher had broken again on 5 January 2023 and that a new dishwasher was purchased and replaced on 24 February 2024.
I do not consider that there has been a breach of the landlord’s obligations. It was open to the landlord to try to fix the dishwasher when it first broke and when it did finally break again the landlord replaced it within a reasonable time frame.
This claim is not proven and is dismissed. Fence
The tenants said that the fence between their property and the neighbours started to lean in towards their property after the January 2023 floods. They said that they asked the landlord to do something about the fence but nothing happened. The tenants said that they did not consider the fence to be safe.
The landlord explained that they approached the neighbours about replacing the fence but could not do so without the neighbour’s consent. The landlord said that there was no indication that the fence was unsafe and that the tenants had no issue removing plants that they had planted along the fence line when they left. The landlord said that the fence has now been replaced as part of the neighbour’s renovation, although this happened after the tenancy ended.
The tenants provided a photograph of the fence but although it appears to me to be on a slight lean there is no further evidence produced to prove that the fence was unsafe and needed urgent replacement.
This claim is not proven and is dismissed. Holes in external cladding
The tenants said that there were three gaps/holes in the fibre cement weather boards. They produced a photo where it is possible to see these holes/gaps. It appears that the fibre cement has simply broken in places, leaving gaps and exposure to the elements.
The landlord said that they discussed the holes/gaps with a builder who said that it would be hard to get fibre cement boards the same size and that the holes were not causing water ingress and so they did not repair them.
Landlords must ensure that external cladding is free from gaps and holes 1 .
I acknowledge that the landlord discussed the issue with a builder but I received no direct evidence from the builder. I do not consider that the builder’s advice was likely to have been focussed the landlord’s overall maintenance obligations to the tenants.
I find that the landlord was in breach of their maintenance obligations by not repairing the gaps and holes in the weatherboards.
This claim is proven. Window leak in stairwell/mould on stairwell
The tenants said that there was a window leak in the stairwell that persisted throughout the tenancy and that the area became covered in black mould. It was clear at the hearing that this issue had significantly impacted the tenant’s enjoyment of the property.
The tenants said that they first noticed the leak in January 2023 when there was heavy rain and flooding in Auckland. They produced correspondence showing that they had contacted and discussed with the landlord. The tenants said that the leak was not repaired. Initially the leak would occur every couple of months when it rained but over the last six months of the tenancy it leaked every time it rained and water would flow down the wall.
The tenants said that it was not until [Property Manager 2] took over as property manager in January 2024 that steps were taken to investigate the cause. They said that despite these investigations the issue was not fixed, but that the wallpaper was removed leaving a large black mouldy patch on the wall.
The landlord said that the previous property manager is not longer employed by them and so they have incomplete knowledge of what had occurred previously. [Property Manager 2] acknowledged that the issue was raised with him by email on 25 January 2024. The landlord said that they took the following steps: 1 Section 17 Housing Improvement Regulations 1947 provides that “The materials of which each house is constructed shall be sound, durable, and, where subject to the effects of the weather, weatherproof, and shall be maintained in such a condition”. a. [Property Manager 2] attended to inspect the area the following day. b. A work order was sent to a builder on 31 January 2024. c. The builder attended and pulled off the wallpaper and found a reasonably large area of mould, but before they could attend to repairs and re-jibbing he had an accident; d. Endeavour Property Services were engaged to do a gutter clean in case this was causing the issue. e. A roofer was engaged to investigate who repaired the roof and seal the flashing. f. Another builder was engaged and completed the work in June 2024, just prior to the end of the tenancy.
I accept that the leaks can be difficult to identify and resolve and that the landlord took appropriate steps from 30 January 2024 although the repairs were delayed. Ultimately however the tenants were living with the leak from almost the start of the tenancy. The earliest correspondence between the tenant and the landlord in regarding this leak was on 1 February 2023 2 . The issue was not completely fixed until just before the tenants had moved out.
I find that the landlord breached their maintenance obligations in respect of the leak over the stairs. This claim is proved. Blinds
The tenant said that the blind over the French doors was broken throughout the entire tenancy and that the blinds in the bedroom were fixed well after they moved in. They said that the fact over the French doors was broken caused some inconvenience as it has affected the use of the doors and access to the outside.
The landlord accepted that the blinds in the bedroom were fixed after the tenants moved in but said that this was noted in the pre-inspection report. The landlord said that they did not know that the blind over the French doors was broken because the tenants didn’t tell them.
I accept that when the tenancy began the landlord was in the process of fixing the bedroom blinds but they were not completed until November 2023, nearly 9 months after the start of the tenancy. I find that the tenants did advise the landlord that the blind over the French doors was broken as the tenants noted this in the pre-inspection report which was returned to the landlord by email on 22 February 2022. 2 One of the tenants sent and email to the landlord on 1 February 2023 stating: “water was seeping through the wall on the stairs where I mentioned in a previous email”
I find that the landlord failed to fix the French door blinds during the tenancy despite being notified at the outset and failed to repair/replace the bedroom blinds in a timely manner.
This claim is proven. Toilet extractor fan not fixed
The tenants said that the extractor fan in the downstairs toilet was not working when they moved in and was never fixed. They said there was no openable window in the bathroom, so an extractor fan was essential 3 . They said that no steps were taken to repair it until the electrician came on April 2024, and that after what occurred (referred to in paragraph 57 and 58 below) they did not want the electrician to come back unless they were home.
The tenants referred me to the entry condition report, marked up with their comments and sent to the landlord on 22 February 2022. The tenants noted on the copy that they sent to the landlord “Guest WC – Extract Fan no working, needs repair”.
The landlord said that after the initial attendance by the electrician it was difficult to gain entry as the tenants insisted that they needed to be home.
The tenants notified the landlord that the toilet extractor fan was broken when they moved in but the landlord did not take steps to repair it until April 2024. I find that the landlord breached their maintenance obligations by not repairing the extractor fan earlier.
This claim is proven. Gap under French doors
The tenants said that there was a gap under the French doors throughout the entire tenancy that let in draughts and also rain in extreme weather. The tenants produced a photo from the exterior showing the gap. The French doors appear to be in very poor condition, with paint missing in most areas and what looks to be some rot.
The landlord said that the tenants did not draw this issue to their attention but they accepted that the condition of the doors was readily apparent at every inspection.
I consider that the landlord has breached their maintenance obligations in respect of the French doors.
This claim is proven. Compensation for failure to maintain 3 Section 9(1) of the Housing Improvement Regulations 1947 provides that every toilet shall have a window opening to the outside or other means of ventilation
I have found that the landlord breached their maintenance obligations in respect of the weather boards, the extractor fan, the blinds, the leak on the stairs and the French doors.
The tenants said that the toilet was unpleasant without an extractor fan as there was no window to open, the broken blind meant they did not have full use of the French doors and the leak on the stairs was a constant source of anxiety every time it rained. They also worried about the health impacts of the mould. They said the condition of the French doors meant that draughts and water could get in.
My overall impression at the hearing was that this property was fairly run down and so the tenants were frequently inconvenienced by maintenance issues and contractors attending to do repairs, even when those repairs were done in a timely manner.
It is not possible to be precise when calculating compensation for breaches of maintenance obligations when the breaches cover different periods during the tenancy and where in the case of the leak the issue was intermittent to some extent (although the mould was present for a prolonged period of time).
Standing back and looking at the issues experienced, the breaches by the landlord and the impact on the tenants, I consider that appropriate compensation to the tenants is $6,350.00 which amounts to approximately $50.00 per week for the duration of the tenancy. Exemplary damages claims Breach of quiet enjoyment
[The tenant/s] the landlord has breached their quiet enjoyment.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
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. See section 38(3) and Schedule 1A RTA.
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". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants explained that the landlord arranged for an electrician to attend to fix the bathroom extractor fan in the downstairs bathroom (acting as the landlord’s agent). However they say that when the electrician entered he went to the upstairs bathroom which was occupied. The person in the bathroom was shocked and upset and the electrician left immediately.
The landlord said that due to timing issues at a previous visit the electrician was permitted to enter with a key. However the electrician did not see the toilet downstairs and so went upstairs. The landlord explained that this was a simply an innocent mistake by the electrician and that they immediately left when it became apparent that they had made a mistake.
While I can understand that the tenants’ distress I accept that this was a one-off incident that was unintentional. I do not consider that the incident amounts to a breach by the landlord.
This claim is not proven and is dismissed. Retaliatory notice and rent increase
On 24 April 2024, the landlord gave the tenant a 90 day notice to end the tenancy on the basis that landlord had to do extensive renovations 4 . The notice recorded that the last day of the tenancy would be on 23 July 2024. The tenant claims the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The tenant said that the landlord served them with the 90 day notice after they filed their claim on 25 January 2024 and mediation was held. The tenant said at the mediation the landlord agreed to do various maintenance work.
The landlord says that they were in no way motivated to end the tenancy because the tenants had exercised their rights. The landlord said that as part of the agreed maintenance they had arranged to lay new vinyl over the existing kitchen vinyl (which would not have required asbestos removal) but it soon became apparent that it would not be possible to do so as the original vinyl had been laid on the floor and up the wall behind the kitchen cabinets. They said that the only option was to then remove the kitchen cabinets and replace the vinyl which would involve re-jibbing and a full kitchen renovation. The landlord said further that the tenants could not remain due to the asbestos removal process and the length of time the renovation would take.
The landlord said that the asbestos removal alone took an entire week and that the kitchen renovation took several months. The landlord produced evidence of relevant quotes and reports. 4 Section 51(2)(f) RTA
I accept that the tenants felt disappointed that they raised maintenance issues during the tenancy, those issues were not all resolved, and that the scale of the kitchen repairs required has led to the end of the tenancy. However I do not consider that the evidence supports the tenants claims that the notice given was retaliatory. I accept the landlord’s evidence that notice was given as the kitchen vinyl issue, after further investigation, meant that the landlord needed to do extensive renovations.
This claim is not proven and is dismissed.
The tenants also say that they were willing to wait until the renovations had been done and were told that they would be considered for a new tenancy, but that the rent would increase because the renovations would have increased the market value for the property.
The landlord agreed with the tenant’s version of events but said that the property would have brand new kitchen and so would have a higher rental market value.
This issue is outside the jurisdiction of the Tribunal. I am only able to consider claims relating to this tenancy. The parties did not enter into a new tenancy and so I have no jurisdiction to consider whether or not the rent was in excess of market rent. Contamination
The tenants claimed that the property was contaminated because there was asbestos in the kitchen vinyl. They said that the landlord should have investigated and taken steps when the company who turned up to dry the carpet raised asbestos as an issue. Later testing confirmed the presence of asbestos. The tenants were also concerned that they were not given the results of the tests in a timely manner.
The landlord said that asbestos is present in many older homes and does not cause any issue unless there is building work or renovations that require the asbestos to be removed. The landlord said that they were told that the asbestos was on the back of the vinyl and that there was no risk while the vinyl remained in place and that the drying of the carpet did not disturb the vinyl as it was in a different room.
Section 45(1)(bd) RTA requires landlords to comply with all requirements in respect of contaminants imposed on the landlord. Section 48(3B) imposes reporting requirements on landlords that do contaminant testing.
The word contaminant is defined in section 2 of the RTA as follows: Contaminant means any of the following: (a) Methamphetamine: (b) Any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of the Act.
There is no regulation prescribing asbestos as a contaminant for the purposes of the RTA so sections 45(1)(bd) and 48(3B) do not apply.
There is an obligation on landlords to manage risk if repairs are being undertaken that could disturb material that contains asbestos 5 .
However there is currently no obligation on landlords to remove asbestos from the property unless works are being undertaken. I accept that in some circumstances asbestos could become a maintenance issue for landlords but there was insufficient evidence for me to make any such finding in this instance.
This claim is not proven and is dismissed. Landlord’s claims
The landlord claimed that the tenants owed $491.93 for water owing to the end of the tenancy (less $112.50 being a credit applied for power and water as compensation in relation to the tenant’s claims regarding the carpet leak). The tenants have now had an opportunity to review the landlord’s invoices and accept that this amount is owing. The amount owing for water is ordered by consent.
The landlord also claimed for rent in the amount of $1,208.57 being rent from 12 July 2024 to 23 July 2024. The landlord says that the tenants gave them 12 days notice before moving out and not 28 days as required. They seek the additional 16 days rent.
Section 51(2B) of the RTA provides that tenants may terminate a periodic tenancy by giving at least 28 days’ notice.
I note that the landlord’s 90 day notice drew the tenant’s attention to the required 28 day notice period if they wished to end the tenancy earlier than the 90 days.
I can appreciate that it is often difficult for tenants to find a new tenancy that perfectly coincides with the end of the tenancy specified in the landlord’s 90 day notice. Landlords and tenants are often able to negotiate a compromise in such circumstances but that has not happened here.
The RTA is clear that if the tenant wishes to move out before the 90 day period has expired they must give 28 days’ notice.
I find that the landlord is therefore entitled to the additional rent claimed, being rent to the end of the required 28 day notice period. Filing fee and name suppression 5 Health and Safety at Work (Asbestos) Regulations 2016
As each party has had some success I have not made any orders refunding the filing fees.
I consider that, as each party has had some success, they are both entitled to an order for name suppression pursuant to section 95A RTA.

Tenancy Tribunal case 4791759 — State of repair

At a glance

Tenancy Tribunal case 4791759 — State of repair

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions