Published tribunal order
Tenancy Tribunal case 4796571 — Rent arrears
Decided 17 Sept 2024 · Published 17 Sept 2024 · Application 4796571
- Rent arrears
- Leaks
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay [The landlord/s] $1,635.71 from the bond, in accordance with the following table:
- The Bond Centre is to pay the bond of $2,720.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,084.29 [The tenant/s]: $1,635.71
- All other claims are dismissed.
Reasons
- Both parties attended the hearing. The owner’s daughter represented them, and [The landlord’s representative] represented [The property manager/s]. When I refer to the ‘landlord’ in this decision, I use the term holistically to mean the property managers and/or owners.
- This tenancy commenced in August 2021 and ended by Tribunal Order on 8 March 2024. The first hearing of the claims was on 16 February 2024 and a case management conference was held on 7 May. The second hearing of the claims was held today.
- The landlord seeks rent arrears and water rates. [The tenant/s] claims compensation and/or exemplary damages for alleged breaches of the Residential Tenancies Act 1986 (RTA) by the landlord.
- [The tenant/s] has paid the water rates therefore that claim was withdrawn at the hearing. [The tenant/s] also withdrew his claim regarding the termination notice.
- I will discuss each claim individually below, however before I do it is important to note that the onus of proof lies with the person or persons bringing each claim. It is the civil standard of “balance of probabilities “or “more likely than not” and should be met by comprehensive evidence such as witnesses, corroborating documents and photographs.
- As the evidence tendered in these proceedings was extensive, I do not refer to it all in this decision, however the parties can be assured it has all been carefully considered. Tenant’s claims
Has the landlord breached their maintenance obligations?
Garage
- Several weeks into the tenancy [The tenant/s] noticed water ingress on the garage floor. He immediately notified the landlord 1 . The landlord investigated but it was not until approximately eight months 2 later that some work was undertaken. Unfortunately, [The tenant/s] says, that did not rectify the issue.
- [The tenant/s] again notified the landlord, and approximately 4 months later 3 another builder did some work. This work however exacerbated the issue. The Council then got involved and drainage was investigated. [The tenant/s]obtained quotes himself for the work and provided them to the landlord however none were accepted. The issue remained throughout the tenancy.
- The impact of the water ingress on [The tenant/s] and his son he says has been as follows: 1 31 August 2021. 2 April 2022 3 In August 2022 a. He had to change the towels he used to absorb the water every few days when it was raining. b. He has not been able to use the garage as he had intended due to the constant water ingress. c. His belongings have been damaged by the water. In particular he lost shelving units that were boxed to a value of $4,680. d. He was not able to use his washing machine as it was dangerous to use electrical items in the wet area. As such he has had to use the laundromat. He also says he couldn’t connect his washing machine because the wrong hosing connection had been used and the tap was leaking.
- For this breach [The tenant/s] seeks compensation in the form of a rent rebate, reimbursement for having to use the laundromat, reimbursement of the cost of the shelves and/or exemplary damages.
- [The owner’s daughter]’s submission is that they investigated every complaint. The initial delay was due to covid lock downs, Christmas and [The tenant/s]’s availability however she says they were actively trying to resolve the matter. She says they offered to reduce his rent by $20 per week in November 2022 but he refused that offer. [The tenant/s] says a specific figure was not provided to him, but he did not accept it regardless because it wouldn’t resolve the issue.
- [The owner’s daughter] also says they did not raise the rent at any point during the tenancy to reflect this ongoing issue and as such it was rented at less than market rent. She says they are happy to pay a small amount of compensation but is clear they did all they could to investigate and rectify the issue.
- The landlord provided photos of the garage when the property was returned showing no mould in the relevant areas and no deterioration to the wooden tub cabinetry or the carpet on the stairs. She also provided photos of the space in use by [The tenant/s], including the shelving being used. She further says that there is no issue with the washing machine piping/connection, and they had this checked themselves when her parents moved back in.
- [The landlord’s representative]’s evidence is that they were never notified that [The tenant/s] could not use his washing machine nor that any of his belongings got damaged. The law
- Section 45 of the RTA states that a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety including the Housing Improvement Regulations 1947 which require a home to be free from dampness.
- Breaching section 45 intentionally 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 RTA.
- It is well settled that, the landlord’s obligation under section 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, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
- This Tribunal has ruled in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
- Finally, pursuant to s.109(2)(b) of the RTA, an application for exemplary damages must be brought within 12 months of the commission of the unlawful act, therefore it is not available for this matter as the claim was not brought within 12 months of the water ingress first being raised. Discussion
- Having considered the evidence very carefully I do not find that the landlord has breached section 45 of the RTA. They have actively investigated the issue and had trades repair various possible reasons for the water ingress. Whilst doing so they have offered a rent rebate and not raised the rent despite their ability to do so.
- In saying that, it is accepted that at various times water did come into the garage. The evidence establishes that this was when there was heavy rain. This was an inconvenience to [The tenant/s]. For this inconvenience I find that some compensation is justified.
- The photos do not establish that he was unable to use the garage; to the contrary, it appears to be fully utilised with a number of belongings stored there, including two fridges and at the first inspection, the washing machine. Although [The tenant/s] says he was not able to use the garage in the particular way he wished, he has not provided specific evidence of what he was unable to do and the pictures of the garage at the inspections show it full of his belongings. I therefore do not find a rent rebate established.
- Considering the above, and the longevity of the matter, I find that an award of $1,000 compensation for the inconvenience just 4 in the circumstances.
- [The tenant/s] also claims compensation for damaged shelving units. He has shown photos of their packaging wet but no evidence that the shelves themselves were damaged. He accepts he is using the shelves but has provided evidence of having to buy other wood to ostensibly fix them up however there is no photographic evidence linking that wood to the erection of the shelves. Moreover, there is no evidence that he advised the landlord of the damage at the time it was incurred. Accordingly this claim must be dismissed.
- [The tenant/s] further claims compensation for having to use the laundromat as he says he was not able to use his washing machine. He says in his written documents that he could not plug it in given the water ingress however photos show his fridge was plugged in next to where the washing machine would go; I therefore do not accept this submission.
- He also says the laundry taps did not work however the landlord has provided an invoice from their trade who looked at the issue. There is no corroborative evidence that [The tenant/s] advised the landlord directly that he was not able to use his washing machine and as such I find on the balance of probabilities that it was his choice to utilise the laundromat and as such his claim must be dismissed. Range hood
- When [The tenant/s] moved into the property his evidence is that the rangehood filters were clogged up with grease. This is substantiated by his email to his property manager at the time. He says he cleaned it as best he could, but it still did not operate effectively, and he raised it with the landlord on several occasions. He says it got to the point where he had to use his gas cooker next to the window.
- The landlord sent an electrician in August 2023 who told [The tenant/s] that the filters needed changing. The landlord however says they were told that it was fine and as such no action was taken. The electrician was telephoned in the hearing and gave evidence that the filter was sucking air to the outside, but the filters needed attendance: cleaning or replacement.
- [The landlord’s representative]’s evidence is that when he raised it in August 2023, they sent the electrician however they had not been told it was an issue prior. Her understanding is that it was resolved at this point as [The tenant/s] did not raise it again. 4 Section 85 RTA
- Having considered the evidence I am satisfied that the property was provided with dirty range hood filters, this is in breach of section 45(1)(a)RTA. [The tenant/s] raised it, but it was not investigated. I am also satisfied that in August 2023 although the electrician did advise that the range hood did not need to be replaced, he did say the filters needed looking into. They were not.
- Accordingly, I consider an award of compensation just given the range hood was not provided nor maintained in a reasonable condition. In the circumstances I find that an award of $150 is just. It did still work but not optimally. Again, exemplary damages cannot be considered given the lapse in time. Porch
- The guttering and flashing were removed from the porch roof in March 2023 when some roof repairs were undertaken and were not removed. As a result, it did not provide adequate protection when it rained. [The tenant/s] says that when he raised this with the landlord in November 2023, he was told that maintenance costs would be passed on to him by way of a rent increase.
- [The owner’s daughter]’s evidence is that she was not advised of the issue as she was only told in August 2023 that it was not complete. She had not even been aware it had been worked on.
- Having considered the evidence provided to me, I do not accept that the landlord was sufficiently aware of the impact of the unfinished porch roof on [The tenant/s], nor indeed that it was an issue at all. Accordingly, this is not a breach of section 45 and this claim must be dismissed. Window
- [The tenant/s] says he contracted a builder to replace the kitchen window and make repairs (seals and locks) to the window in his son’s room at a cost of $600 which he paid in cash. He did not tell the landlord he was doing so and is not able to provide confirmation of the work as the trade who conducted it is now in bad health. He says he did not ask for reimbursement at the time because of the difficulties he was having communicating with the landlord (discussed below).
- [The owner’s daughter] and [The landlord’s representative] say they were not aware of any issue with the windows and are not aware the work has been done. To them they see no difference in the windows and the inspection reports did not note a crack in the window in the kitchen nor any issues with the other window.
- The ingoing 5 and first 6 inspection report do note that the kitchen window was broken and was to be repaired “soon”.
- Section 45(1)(d) of the RTA says the landlord shall compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i)the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii)the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so;
- [The tenant/s] did not advise the landlord of his intention to fix the window, nor did he give them any opportunity to rectify the matter. A tenant must give a landlord time to attend to their maintenance requirements before they take matters into their own hands. He has also not substantiated in evidence the claim, and as such it must be dismissed.
Did the landlord breach their obligation to provide a contact person?
- [The tenant/s]’s evidence is that he regularly had difficulty contacting his property manager and was not told at times when there were changes in manager. He had to resort to contacting the owner’s daughter on occasion. He says this is in breach of section 16 of the RTA.
- He says it was extremely frustrating not having a specific property manager assigned to him and not get replies to texts or calls. He says reporting maintenance was very difficult. He accepts he always had the office contact number and that the mobile number for his property manager was always the same despite the actual manager changing at times.
- [The landlord’s representative] disagrees. She says they had a lot of correspondence from [The tenant/s] and always replied quickly by text and emails. She went through the emails and texts over the tenancy to confirm that. She says he called the office directly a number of times, and everyone knows him as he was difficult to communicate with and took up a lot of their time. She says she took over managing the tenancy in May 2023 given the difficulties. She says the same mobile number was always used and any emails were always forwarded from past managers.
- Section 15 of the RTA requires notification to be provided to a tenant if the landlord changes. Section 16 requires notification of any change in details. 5 12 August 2021 6 16 November 2021
- Having considered the evidence very carefully, I do not find there to be a breach of sections 15(2) or 16 RTA established. The property management company remained the same throughout the tenancy. [The tenant/s] always had a mobile contact number and the office number. He also had the email address of the various property managers and the director. He also had [the owner’s daughter] direct contact details.
- There were certainly miscommunications between [The tenant/s] and his property managers during the tenancy, but I am satisfied that [The tenant/s] always had the ability to contact his landlord. This claim is therefore dismissed. Did the landlord discriminate against [The tenant/s]?
- [The tenant/s] feels discriminated against because when he applies for new tenancies, he is not getting them. He suspects [The landlord’s representative] is giving a bad reference and as such he requested his file from [The property manager/s] pursuant to the Privacy Act 2020. He says [The property manager/s] did not give him advice nor did they assist him to obtain a new property and as such he is now in emergency accommodation which is substandard.
- [The landlord’s representative] provided evidence that she has given him the link to his electronic file. She provided evidence of the only written reference she was asked for and her comments are positive. She says she did have calls for references and answered the questions honestly as she did want to help him find another property.
- A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) RTA. Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
- I do accept that this has been an incredibly stressful time for [The tenant/s] and his son, and it is extremely unfortunate that has not been able to find a new home. I sincerely empathise with him for the position he is in. However, [The tenant/s] has not established in evidence that he has been discriminated against. As such the claim is dismissed. Landlord’s claims
- The landlord seeks rent arrears until the termination date of 8 March. [The tenant/s] chose to move out earlier and as such ceased his rental payments. He was legally obliged to pay rent until the end of the tenancy. As such I find him liable for the amount of rent he did not pay between 22 February and 8 March.
- The second unreconciled payment was in January 2023. [The tenant/s] provided documents from Work and Income New Zealand (WINZ) which says they made a payment on 4 January. He also provided another document from them listing the payments they have made on his behalf which did not reference this payment. [The tenant/s] also says he paid that week from his bank account as well.
- The landlord provided bank statements in their entirety for January and February 2023 which state that a payment from [The tenant/s] for his rent this week was not received.
- I prefer the landlord’s evidence given they have provided direct statements from their bank evidencing they did not receive the payment. This is because the WINZ documents contradict each other, and the bank statement [The tenant/s] provided actually appears to be for the following year.
- As such I am satisfied that the rent for the week 5 January 2023 until 11 January 2023 was not paid and should be. Accordingly, the landlord’s claim for rent arrears is made as sought. Filing fee
- As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. Suppression
- Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion whilst weighing up the parties’ interests and the public interest. Both parties seek suppression.
- I approve the landlord’s application as they were wholly successful in their claim. I also approve [The tenant/s]’s application for suppression given he was partially successful and has health issues that were discussed within these proceedings.