What was Tenancy Tribunal case 4804404 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 4804404?

Compensation: Failure To Maintain: $2,350.00 awarded to tenant; Cleaning: $650.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4804404?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4804404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10340558-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4804404 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 4804404?

Compensation: Failure To Maintain: $2,350.00 awarded to tenant; Cleaning: $650.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4804404?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4804404?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10340558-Tribunal_Order_Redacted.pdf.

107 Abel Smith Street, Aro Valley, Wellington 6011 Tenancy Tribunal Case 4804404 — State of repair

Claims and awards in Tenancy Tribunal application 4804404 — net $5,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide clean premises	$650.00	Failure to provide clean premises
Compensation: Failure to maintain	$2,350.00	Failure to maintain
Exemplary damages: Failure to maintain	$2,400.00	Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,420.44
Total payable by Landlord to Tenant	$5,420.44

Claims and awards in Tenancy Tribunal application 4804404 — net $5,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide clean premises	$650.00	Failure to provide clean premises
Compensation: Failure to maintain	$2,350.00	Failure to maintain
Exemplary damages: Failure to maintain	$2,400.00	Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,420.44
Total payable by Landlord to Tenant	$5,420.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
Ganesh Superannuation Fund Limited must pay [The tenant/s] $5,420.44 immediately, calculated as shown in the table below.
The landlord must carry out the following work to the premises, which must be completed by the dates stated (“the compliance dates”): a. Repair or replace the dishwasher as necessary by 29 May 2024; b. Repair or replace the lights as necessary which are not working in the kitchen/lounge area and in the first bedroom on the left by 29 May 2024; c. Investigate and determine the cause of two leaks in the bathroom near the base of the toilet and from the crack inside the bath/shower unit by 22 May 2024; and complete all necessary repairs including replacement of the toilet and the bath/shower unit if necessary to stop the leaks by 5 June 2024; d. Repair the leak causing water ingress above the window of the second bedroom on the left (known as bedroom 5); and repair and make good the exposed hole in the wall above the window where rotten, mouldy boards and gib were removed by 5 June 2024; e. Repair the curtains in the first bedroom on the left so that they run smoothly across the curtain track by 29 May 2024.
Each work order is to be completed by an appropriately qualified electrician, plumber, builder or other tradesperson for the particular work required.
If the landlord fails to comply with any of Orders 3(a) to (d) above, then the landlord will pay the tenants compensation of $100 per week, for every week or part week that any one of the orders is outstanding from the day after the compliance date until the date the work has all been completed. These costs may be set off against rent payable.
This matter is determined as indicated by the orders above, but both parties are granted a period until 15 July 2024, within which they may request that the application be brought back to the Tribunal and the matter will be re-opened, should issues arise which require further orders such as: failure by the landlord to complete the work by the compliance dates such that the tenants wish to engage contractors to complete the work or seek other remedies such as termination of the tenancy; or should the landlord require an extended compliance date for the works due to the scope of the works required and/or availability of tradespersons.

Reasons

Both parties attended the hearing with Mr Reeve representing the landlord. All tenants were present. As I understand it, Mr Reeve is employed or contracted by Ganesh Superannuation Limited (Ganesh) to manage the company’s tenancies. In that regard, he is named as agent for Ganesh on the tenancy agreement.
There is little dispute about the facts. Mr Reeve accepts that the landlord failed to provide the premises in a reasonably clean and tidy state at the start of the tenancy and also failed to repair and maintain the premises following many notifications from the tenants to the landlord about various defects since the tenancy began on 13 November 2023. The tenants seek work orders, compensation and exemplary damages for the landlord’s breaches. They also seek reimbursement of the filing fee on this application. The Law
Under section 45(1)(a) and (b) Residential Tenancies Act 1986 (RTA), the landlord has an obligation to provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair. 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 RTA.
In addition, where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) RTA. In this instance, Mr Reeve consented to the Tribunal making work orders, in which case the Tribunal may make an alternative money order at its discretion.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.

Has the landlord failed to comply with their obligations?

The landlord accepts and I find the following breaches have occurred: a. Breach of s45(1)(a) RTA—The premises were not provided in a reasonably clean and tidy state at the start of the tenancy (13 November 2023), as evidenced by photos, which delayed the tenants being able to fully shift into the premises. While the landlord arranged for cleaning to be done on 17 November 2023, the tenants report that the cleaner only wiped down surfaces and did not clean the oven and the fridge which they had to complete themselves. The landlord did not respond to the tenants’ request for some compensation given that they were paying rent for a property that they could not fully shift into until 5 days after the tenancy started; b. Breach of s45(1)(b) RTA—Failure to fix the dishwasher and lights in the kitchen/lounge and one of the bedrooms which have not been working since the start of the tenancy six months ago and were first reported to the landlord on 19 November 2023. It is acknowledged that Mr Reeve attended the premises on 23 November and replaced some lightbulbs in the hope that this would fix the lights. However, the tenants advised him on 29 November that this did not solve the problem and the lights still flicker and/or do not work; c. Breach of s45(1)(b) RTA—Failure to fix the leak at the toilet base which was first reported on 18 December 2023 and has resulted in mushrooms and fungi growing in the area. The landlord sent a plumber to look at the issue on 28 March 2024. However, the tenants advised the landlord on 9 April that this did not resolve the issue with the toilet leak returning; d. Breach of s45(1)(b) RTA—Failure to fix bedroom leak occurring through a crack in the window frame which was first reported on 2 April 2024. Mr Reeve cleared the exterior gutters on 3 April to address the matter. The tenants immediately advised him on 4 April that the leak was still occurring. On 11 April, the landlord sent a tradesperson to look at the window. He applied a sealant. On 12 April, the tenants advised the landlord that the window was still leaking. Mr Reeve said he would arrange for a builder to inspect the leak. However, nothing happened. On 21 April, the tenants found a builder and obtained Mr Reeve’s consent to cover the call-out fee for their builder to inspect the leak. On 23 April, the builder completed an initial inspection stating that the wall had rotten wood and mouldy gib boards which he removed (with Mr Reeve’s consent). This has left a significant hole which has not been repaired. In the meantime, the occupant of this room has had to vacate the room (and is living elsewhere temporarily). The landlord, acknowledging that this room is uninhabitable, has reduced the rent payable for the premises by the amount which was being paid by the occupant of $266.50/week which is to apply until the leak is repaired.
In respect of the issues in paragraphs 7b and c above, the tenants sent a 14- day notice to the landlord on 18 December 2023 requiring the landlord to remedy the matters by 5 January 2024. The landlord did not do so. None of the items in paragraphs 7b,c and d above were fixed by the hearing date, despite notice of this application to the landlord which was filed on 11 March and notice of the hearing sent to the landlord on 20 March 2024. Since first reporting the various defects to Mr Reeve, the tenants have followed up with him multiple times to request that the defects be repaired. This has been done by phone calls, texts, and messages through the MyRent app used by the landlords.
The tenants are entitled to work orders requiring the landlord to fix the above issues and they are also entitled to compensation for the breaches.
The tenants have also reported two new issues to the landlord which have occurred since lodging their Tribunal application. I have made work orders in relation to these matters but I am not awarding compensation. That is because the landlord is entitled to an opportunity to remedy the matters in a reasonable timeframe before being liable to pay compensation for any failure to do so. However, I would caution the landlord to address the matters without delay, particularly the bath/shower leak which requires urgent attention.
The first new issue concerns the bath/shower. On 13 May 2024, the tenants notified the landlord of a new leak coming from the bath, in the same bathroom that also has the leaking toilet. There is a crack which has developed in the bath near an area that is covered in yellow sealant. The tenants report that when using the shower over the bath, water leaked onto the floor through this crack. Consequently, the shower cannot be used until this defect is fixed.
The second new issue raised at the hearing was a problem with the curtains in one of the bedrooms which the tenants notified Mr Reeve about on 10 May 2024. The curtains are not attached properly to the rail with missing hooks and one part attached with an unusual metal rod and a zip tie cable. The tenants say the curtains have been attached in this manner since the start of the tenancy but have become detached through fair wear and tear.

Should compensation and exemplary damages be awarded?

The tenants are entitled to compensation for the landlord’s failure to provide the premises in a reasonably clean and tidy condition at the start of the tenancy and the landlord’s failure to fix the many defects raised. When considering whether to impose compensation, and how much, it is relevant to consider the extent to which the landlord has breached their obligations and the impact on the tenants.
The landlord’s obligation is to investigate and repair a defect brought to their 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) 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 also 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.
In this case, I am satisfied that the tenant has discharged their duties to notify but the landlord has failed to discharge their obligations to investigate and put right the problems in a reasonable timeframe. The result has been that the tenants have suffered a loss of working amenities for which they are paying rent. The leaks, in particular, are cause for concern given the potential health impacts.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
Having regard to all relevant factors I award compensation as follows: a. For failing to provide the premises in a reasonably clean and tidy state which impeded the tenants ability to fully move into the property for 5 days, I award $650 being 50% of the rent owed for that week as requested by the tenants. I consider the amount is reasonable and justified. b. For failing to maintain the property and address the defects notified by the tenants I award $2,350. To give some guidance as to how I reached this figure, it equates to weekly rent reductions of: $50 for the period of 26 weeks from 13 November 2023 to the hearing date during which the lights and dishwasher have not worked; $50 for the period of 21 weeks from 18 December 2023 to the hearing date during which the toilet leak has not been fixed; c. I have not awarded further compensation for the leak in the bedroom because the landlord has already compensated the tenants by reducing the weekly rent payable by $266.50 while the room is uninhabitable.
By breaching s45 RTA, the landlord has also committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
As to whether the landlord acted intentionally, it is well established that the landlord must have acted intentionally, in the sense of deliberately and with full knowledge.
Mr Reeve was candid about the fact that he failed to discharge his duties on account of some personal circumstances that have affected him and his ability to cope with and carry out his functions as agent for the landlord. This was discussed at the hearing but it is not necessary to provide further detail in this decision. While I accept that Mr Reeve’s inaction occurred as a result of the personal circumstances he explained at the hearing, he was unable to adequately explain why this inaction continued for so long. In particular, he was unable to explain why the landlord failed even to take steps once the tenants lodged their Tribunal application. A notice of hearing was sent to the landlord on 20 March 2024, and yet, the landlord did little to address the outstanding defects at the premises before the hearing today.
At one point, it appears that one of the tenants’ follow up messages requesting repairs using the MyRent app was answered by another person on behalf of Ganesh, possibly its sole director and shareholder, Mr Patel. On 5 December 2023, they received a message which read “Respected....Thanks for that......we will request Mr Daniel Reeve property manager to look at! He is the manager and great value! Please contact him directly! He is great value.....” Therefore, it appears that Ganesh also had access to the MyRent app and would be aware of the tenants’ multiple requests for action.
In summary, I find that the landlord has repeatedly failed or been very slow to respond to messages from the tenants; failed to address the outstanding maintenance and defects over the period of six months; failed to comply with the 14-day notice; and failed to take reasonable steps even once notice of the hearing was served in March 2024. All of those factors are compelling evidence that the landlord (Ganesh and/or Mr Reeve) acted intentionally, in the sense of deliberately and with full knowledge.
Considering the other factors in s109, I find that the effect of the unlawful acts has been detrimental to the tenants’ enjoyment and use of the property. There is a very strong interest for tenants and the public generally that landlords comply with their obligations under the RTA and repair defects brought to their attention in a reasonable timeframe.
An award of exemplary damages is justified. The maximum that can be awarded is $7,200 for each unlawful act. I award $2,400 which is 33% of the maximum. This marks the Tribunal’s disapproval of the landlords inaction, particularly following service of the 14-day notice and then following service of this application and the notice of hearing. However, the award is at the lower end of the scale because there is no evidence to suggest similar breaches by this landlord in previous tenancies.
As the tenants have substantially succeeded with their application, they are entitled to suppression of their names and identifying details and to reimbursement of the filing fee. K Stirling, 15 May 2024

Tenancy Tribunal case 4804404 — State of repair at 107 Abel Smith Street, Aro Valley, Wellington 6011

At a glance

Tenancy Tribunal case 4804404 — State of repair at 107 Abel Smith Street, Aro Valley, Wellington 6011

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Should compensation and exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Should compensation and exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions