Published tribunal order
Tenancy Tribunal case 4797638 — Healthy homes at Unit/Flat 8, 360A Onehunga Mall, Onehunga, Auckland
Decided 1 Aug 2024 · Published 1 Aug 2024 · Application 4797638
- Healthy homes
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 tenant’s name and identifying details.
- must pay immediately as set out in the table below.
- remaining claims are dismissed.
- The landlord’s claims are dismissed.
Reasons
- Both parties attended the hearing, the first day of which was held on 7 June 2024 and the second of which was held on 26 July 2024 at [Event location suppressed].
- The landlord, Judith Agius was assisted by Dorothy Stewart on the first hearing day, and by Oliver Crawshay on the second hearing day.
- The landlord’s claims were withdrawn by the landlord on the second hearing day.
- The tenant sought the following: a. An order reducing the required notice period from 28 days to 14 days, b. Compensation for a water leak, c. Work orders (as set out below), d. Compensation for not being given 48 hours-notice for an inspection, e. Exemplary damages for not being provided a Healthy Homes Report for the property when requested, f. Compensation for breach of the Healthy Homes draught stopping standard, g. Compensation for breach of the Healthy Homes ventilation standard, h. Compensation for cleaning expenses at beginning of the tenancy, i. Compensation for the landlord failing to maintain the premises with regard to interior cladding and two rotting windows, j. Exemplary damages for stress. Reduction of the notice period
- The tenant sought reduction of the notice period from 28 days to 14 days to vacate the property.
- The landlord did not consent to the request, and no persuasive reason was given for the application. I decline to make an order allowing it. The water leak
- The tenant provided information including water bills from May 2023 until April 2024, and a table collating information from the water bills which on the face of it establishes that there has been a water leak, and that the tenant has been charged for water that has leaked.
- The tenant set out that the premises she rents is one of 11 units at the property. The landlord does not own any of the other units. The landlord confirmed this information. The water is measured as it comes off the street at the master metre and again as it is used by each of the 11 units at separate subsidiary metres. The water measured by the 11 subsidiary metres is compared with the water measured by the master metre, and any excess discrepancy is divided amongst the 11 units on a proportional basis according to each of the units’ usage.
- The tenant claims that over the time of her tenancy until April 2024, the excess water and wastewater that she has been charged for amounts to $221.74 in charges.
- The landlord did not dispute the interpretation of the water bills that arrives at this amount, or the calculation. Nor did she dispute that the landlord is responsible for the cost of the water that has leaked. She did point out that the leak appears to be inconsistent, that when there was nobody in the house the water bill (including the amount calculated for leakage) dropped significantly and that the calculated leak amounts to a large amount of water, which is not presenting itself as wet ground anywhere.
- In response to this, the tenant stated that the land in the area is lava tunnels which drain large amounts of water easily.
- The tenant has persuaded me on the balance of probabilities that there is a substantial water leak for which she should be compensated for being overcharged by the amount she has calculated which is $221.74.
- This claim is proved. Work orders
- On the first day of the hearing, the tenant made applications for work orders for the following issues: a. The heat pump not blowing hot air, b. The hot water cylinder overflowing onto the roof whenever the mixer in the bathroom is used, c. The tap in the laundry occasionally dripping, d. The watermains metre box collecting water, which indicates a leak.
- The landlord accepted she knew of all of the above issues and she attempted to begin to remedy the problems on 29 April 2024 by giving notice that her representative would be conducting an inspection on 3 May 2024.
- The tenant responded by saying she would not consent to the landlord’s representative inspecting the premises, and on 1 May 2024 she advised that if the landlord’s representative came onto the property, she (the tenant) would call the police. At this point the landlord ceased attempts to remedy the issues that had been raised by the tenant.
- On the second day of the hearing the tenant stated all of the above issues had been resolved satisfactorily and she was withdrawing her claim for work orders. Failure to give 48 hours’ notice of an inspection
- claims the landlord has breached section 48 of the RTA by not giving 48 hours for an inspection.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- At 2.25 pm on 20 May 2024 the landlord emailed [The tenant/s] to advise her they would be conducting an inspection to check the heat pump some time after
- 00 am on 22 May 2024. If the inspection had been conducted between 11.00 am and 2.24 pm on 22 May 2024, the notice period would have been less than the required 48 hours by some hours or minutes. In the event, the landlord cancelled the inspection by sending an email at 1.14 pm on the day of the inspection.
- [The tenant/s] claims that because the notice indicated an inspection less than 48 hours after the notice was served, the landlord has breached the RTA. However this is a misconceived interpretation of the provision of the RTA: The breach of section 48 of the RTA is when a landlord enters the property without having given adequate notice, and not for giving a notice that appears to be inadequate.
- This claim is not proved. Failure to supply Healthy Homes Report within 21 days of request
- claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- 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.
- [The tenant/s] claims she orally requested a copy of the Healthy Homes Report for her property on 11 April 2023, 13 April 2023, 18 May 2023, and 8 August 2023. The landlord does not remember whether or not these requests were made.
- [The tenant/s] claims she then made email requests for the Healthy Homes Report on 8 December 2023, 10 December 2023 and 12 December 2023. The landlord accepts she received these requests and did not provide the report as requested.
- The claim is proved. I find the landlord committed an unlawful act.
- Healthy Homes standards are topical and important, and it is not acceptable for landlords to disregard a tenant’s right to access them unless there is a very good reason. No good reason was given by the landlord in this case. I am persuaded that at least three requests were made, and it is likely there were more. It is not clear whether the reports were not provided because of a lack of competence in managing the property, or if there was another reason. I make an award of exemplary damages of $400.00. Breach of Healthy Homes ventilation standard
- 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). considers that the landlord has failed to comply with the HHS ventilation standard.
- Compliance dates for the HHS vary depending on the tenancy. For private rentals, if the tenancy commenced between 28 August 2022 but before 3 March 2025, (as it did in this case) the rental must comply within 120 days of the commencement of any new or renewed tenancy.
- 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).
- [The tenant/s] claims that from the beginning of the tenancy on 2 May 2023 until 16 February 2024, the stays on windows in the small bedroom and the lounge did not secure the windows in an open position when the wind blew from a particular direction.
- The Residential Tenancies Act (Healthy Homes Standards) Regulations 2019 section 21, states in part: (3) A window, skylight, or door is a qualifying window or door if it – (a) opens to the outdoors; and (b)is designed and built in a way that allows it to remain fixed in the open position during normal occupation of the premises.
- Because the windows in question were not always able to be fixed in an open position, the landlord is in breach of the Healthy Homes standards. I find the claim proved and in this regard committed an unlawful act.
- I consider the breach to be very minor. The breach concerns a small number of windows that could be opened and that sometimes stayed open, but not always. The legislation clearly states that opening windows must be able to be secured open. The windows were compliant in other regards, and the tenant stated that she used blocks of wood to hold them open, which although should not be necessary, allowed the windows to continue to be usable.
- Considering these factors I order exemplary damages of $200.00. Breach of Healthy Homes draught stopping standard
- claims that the landlord has also failed to comply with the HHS draught stopping standard. a. Gap between wall and floor. b. Louvre window needs to be closed by pushing the lever and then pushing each pane individually.
- Photographs of louvre window shows the window to be in good condition. It is an old-fashioned solution, but it is functioning well. A video that [The tenant/s] provided show her pushing lightly on the individual panes to lock them closed. I am not persuaded this is sufficient to be a breach of the HHS.
- 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.
- In this case I have determined that a. There were gaps between the floor and the walls from 2 May 2023 until 16 February 2024. b. The louvre windows were compliant.
- [The tenant/s] referred to insects and skinks entering the house through this gap but did not give evidence of a draught from the gap. However, I do find committed an unlawful act. I consider the breach minor.
- Considering these factors I award $250.00 in exemplary damages. Cleaning
- [The tenant/s] is of the opinion that at beginning of the tenancy, the house was extremely dirty.
- Each party provided the exact same pre-tenancy photographs and interpreted them differently. The tenant also provided some extra photographs showing specific things that she claimed were unacceptable. For instance, a small amount of sand in the hot water cupboard was evidence of an ant “infestation”. Some items (for example, a plastic bag, a shoe, an item of clothing) that were pulled out from behind the hot water cylinder were evidence that the hot water cylinder cupboard had not been cleaned.
- I do not agree with [The tenant/s] submissions that the house was extremely dirty.
- The photos provided show a house that is old and in average to poor condition in many regards. It had been empty for many months prior to the tenancy, and it hadn’t received a clean immediately prior to the tenancy. The house was not fresh and new and it did look somewhat tired. However I do not find that in the circumstances the premises was unusually or unreasonably dirty.
- I accept [The tenant/s] uncontested submissions that representations were made that the house would be cleaned prior to her moving in, which didn’t happen, and I accept that the house wasn’t perfectly clean.
- [The tenant/s] engaged a cleaner and paid them $317.40 for their services. She also spent several hours herself cleaning the house and she is claiming $506.25 for her time.
- The landlord disputed the invoice of the cleaner based on a lack of GST number and whether or not the cleaning company was bona fide. I accept the [The tenant/s], evidence that she engaged a cleaner and paid them $317.40, and I order compensation for this amount. Because [The tenant/s] suffered no financial loss in also cleaning her house I do not make an award for the [The tenant/s] time spent cleaning.
- The amounts ordered are proved. Carpet cleaning
- [The tenant/s] claims the carpets were filthy at the beginning of the tenancy. She paid for a carpet cleaning machine and cleaned the carpets herself. [The tenant/s] provided photographs of the dirty water that came out of the carpet cleaner at the end of the job.
- In response the landlord provided an invoice for a professional carpet clean that was undertaken the day before tenancy began. She disputed that the carpets were dirty when [The tenant/s] moved in.
- I accept landlord’s evidence that carpets were cleaned the day before the [The tenant/s] moved in. This does not negate [The tenant/s] information that dirty water came out of the carpet cleaning machine the very next day, but in the absence of photographic or other information showing the actual state of the carpet at this time, I am not persuaded on the balance of probabilities that the carpet was so dirty that it required [The tenant/s] to clean it again.
- This claim is not proved. Key cutting
- [The tenant/s] claims compensation for a second set of keys she had cut. The landlord disputes the expense.
- [The tenant/s] was the only tenant on the tenancy agreement and the landlord provided a complete set of keys. [The tenant/s] stated she wanted a second set of keys for an emergency. She was at liberty to get the extra keys cut, but this was a matter for her at her expense. I find the landlord is not liable for this cost.
- The claim is not proved. Compensation for batteries in smoke alarm and for draught stopping tape
- [The tenant/s] claims $8.50 for the cost of replacing batteries in smoke alarms, and $27.10 for draught stopping tape which she installed herself. The landlord does not dispute the claims, and the claims and amounts are therefore proved. Compensation for pest control
- [The tenant/s] claims the property was infested with mice, ants, cockroaches and skinks. She provided invoices from Mitre 10 for $132.69 for various pest control measures. [The tenant/s] provided a photograph showing some sand in the hot water cylinder which she said had been moved by ants, and a photograph with a dead ant in it and another of a mouse dropping.
- The landlord disputed that the property was infested with mice, ants, cockroaches and skinks, and she disputes the amount spent on the pest control measures. The landlord stated that the property had been empty for some time prior to this tenancy, and it would have been unusual for no animals to have passed through the premises, but this didn’t prove an infestation.
- I am not persuaded on the balance of probabilities that there was a current infestation of mice, ants cockroaches or skinks and that the pest control measures were therefore necessary at the start of the tenancy.
- The claim is not proved. Failure to maintain the premises: interior cladding and two rotting windows
- claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.
- 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) and Schedule 1A RTA, 1986.
- [The tenant/s] claims that parts of the house had exterior walls with no interior cladding. [The tenant/s] stated that the interior cladding had disintegrated and been removed. She produced photographs that show condensation on the inside of the exterior cladding. [The tenant/s] provided an excerpt from the Building Regulations 1992 regarding durability of building elements used.
- In response Mr Crawshay stated that this was an original feature of the construction of the house from the 1960’s and it was compliant with the building code of the time.
- The photographs do not show evidence of interior cladding having once been present. I am not persuaded that the walls in question were constructed with interior cladding and on this basis the claim is not proved.
- [The tenant/s] also claims that two windows, one in the smaller bedroom and one in the main bedroom were extremely rotten. She produced photographs that show the sash of one of the windows breaking apart at a join.
- Mr Crawshay in response stated that the house had a healthy homes inspection, and the report that was issued made no note of the poor condition of the rotten windows. Mr Crawshay stated that in each of the bedrooms there were still windows that could safely be opened and he was of the view that [The tenant/s] had never raised a complaint about the condition of the windows.
- This is not a claim regarding a breach of Healthy Homes Standards; it is a claim for failing to maintain the premises. Being an older, unrenovated house, expectations around the level of maintenance will not be the same as for a brand new house. However the condition of the windows falls below an acceptable level, as the information provided shows they are very close to falling apart. Furthermore the landlord’s obligation to maintain a property is not subject to a tenant notifying them of the defects. Whether or not [The tenant/s] brought the condition of the windows to the landlord’s attention, it remains the landlord’s responsibility to comply with section 45 of the RTA.
- The claim is proved. I find the landlord committed an unlawful act. In the circumstances I consider the breach minor and I award exemplary damages of $200.00. Exemplary damages for stress
- [The tenant/s] sought exemplary damages for stress caused to her by the landlord’s conduct. Under the RTA, there is no ability for the Tribunal to award exemplary damages to a party for stress.
- The claim is dismissed. Costs
- On the first day of the hearing Ms Stewart indicated she would make an application seeking costs. Subsequently Ms Stewart did not attend on the second day of the hearing. For the sake of completeness costs are covered by section 102 of the RTA. 102Costs (1)Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2)The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a)where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b)where any of the parties was represented by counsel: (c)where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner: (d)where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause.
- It appears none of the above sections apply to Ms Stewart’s situation, but in any event no application has been made.
- Because [The tenant/s] has been substantially successful in her application, I must reimburse the filing fee.