What was Tenancy Tribunal case 4810759 about?

The tribunal order states: The Tribunal Orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4810759?

Compensation: Healthy Homes assessme…: $148.35 awarded to tenant; Compensation: Lawn Mowing: $100.00 awarded to tenant; Compensation: Unsafe Deck: $1,740.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4810759?

The primary dispute was Exemplary damages. Related themes: State of repair, Healthy homes.

Where can I read the official tribunal order for case 4810759?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10486142-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4810759 about?

The tribunal order states: The Tribunal Orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4810759?

Compensation: Healthy Homes assessme…: $148.35 awarded to tenant; Compensation: Lawn Mowing: $100.00 awarded to tenant; Compensation: Unsafe Deck: $1,740.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4810759?

The primary dispute was Exemplary damages. Related themes: State of repair, Healthy homes.

Where can I read the official tribunal order for case 4810759?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10486142-Tribunal_Order_Redacted.pdf.

38 Caversham Drive, Torbay, Auckland 0630 Tenancy Tribunal Case 4810759 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4810759 — net $5,108.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Healthy Homes assessment fee	$148.35	Healthy Homes assessment fee
Compensation: lawn mowing	$100.00	lawn mowing
Compensation: unsafe deck	$1,740.00	unsafe deck
Exemplary Damages: failure to provide any heating	$750.00	failure to provide any heating
Exemplary damages: failure to provide HH statement	$600.00	failure to provide HH statement
Exemplary damages: failure to maintain (deck	$750.00	failure to maintain (deck
Exemplary damages: failure to approve minor change	$1,000.00	failure to approve minor change
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,108.79
Total payable by Landlord to Tenant	$5,108.79

Claims and awards in Tenancy Tribunal application 4810759 — net $5,108.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Healthy Homes assessment fee	$148.35	Healthy Homes assessment fee
Compensation: lawn mowing	$100.00	lawn mowing
Compensation: unsafe deck	$1,740.00	unsafe deck
Exemplary Damages: failure to provide any heating	$750.00	failure to provide any heating
Exemplary damages: failure to provide HH statement	$600.00	failure to provide HH statement
Exemplary damages: failure to maintain (deck	$750.00	failure to maintain (deck
Exemplary damages: failure to approve minor change	$1,000.00	failure to approve minor change
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,108.79
Total payable by Landlord to Tenant	$5,108.79

Order

The Tribunal Orders suppression of the tenant’s name and identifying details.
This application and this Order should be referred to the presiding adjudicator in application 4753989, to consider whether a re-hearing of that application should be granted.
Miao Feng must pay [The tenant/s] $5,108.79 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The tenant was assisted by an interpreter. Background
The parties entered into a fixed term agreement for a term from 19 September 2022 to 18 September 2023.
The agreement was negotiated by an agent for the landlord whose details are not provided in the agreement.
The agreement includes an insurance statement and information about insulation installed in the premises but provides no information other than that in terms of the premises’ Healthy Homes compliance. It does not include a Healthy Homes compliance statement signed by the landlord.
The tenant’s daughter suffers from significant disability. Before the tenancy began the tenant arranged an ACC assessment of the premises. The assessment was carried out on 6 October 2022 and the resulting report is dated 19 October 2022. The report recommends the installation of window stays noting, “The landlord has been approached and has declined to add different window stays but indicated they are happy for the tenant to have this done.”
The report also recommends handheld rather than the Feltonmix type fixed shower heads be supplied. It also notes the need for repairs to the deck.
The evidence indicates that ACC contacted the landlord in November seeking permission for addition of the window stays, which were to be done at the cost of ACC. The evidence shows a follow up to that request in January 2023 as ACC had not heard back from the landlord. Then on 6 January 2023 ACC contacted the landlord to say that the case had been closed as the tenant was intending to move. The tenant did not in fact move at that time. No window stays were installed.
The tenant bought handheld shower heads.
The tenant asked for the landlord to repair the deck and some repair work was carried out.
Toward the end of the tenancy, the tenant arranged for a Healthy Homes assessment of the premises and a report was completed on 14 November 2023 by [company].
That report notes that the premises were not compliant with moisture ingress and drainage standards, not compliant with ventilation standards and not compliant with heating standards.
Under the heading “Other repair and maintenance issues” the report notes, “The external deck is in a bad state. Missing balustrade piece with numerous nails protruding. The entire balustrade is loose and rotten. The deck is mouldy and likely needs to be replaced due to signs of rot.” Photographs show the poor and unsafe condition of the deck and the inadequacy of repairs carried out. The Proceedings
The tenancy ended on 4 December 2023.
The landlord bought an application (4753989) seeking compensation for rent arrears and outstanding water rates. Those claims were determined in a consent order dated 8 February 2024 (“the February Order”) providing that the tenant would pay the landlord $600.00 by 6 weekly payments of $100.00. It is agreed that of the $600.00 ordered, the tenant has paid $350.00.
The February Order records that “The parties have agreed to resolve all disputes between them relating to the tenancy.....” in terms of that Order.
This application was brought by the tenant on 16 February 2024.
The tenant wishes to revisit the terms of the consent order.
Compensation is claimed for: • The unsafe deck • The HH inspection fee - $148.35 • The cost of replacement shower heads - $86.20 • Excess water used due to a leak - $79.96 • Carpet cleaning costs at the start of the tenancy - $160.00 • Lawn mowing costs at the start of the tenancy - $100.00 • 2 weeks rent refund - $1520.00.
Exemplary damages are claimed for: • Failure to provide Healthy Homes information • Failure to comply with Healthy Homes Standards • Breach of maintenance and repair obligations (unsafe deck and lack of window stays).

Is this application prevented by the February Order?

I have explained to the parties that it is not proper for me to revisit a sealed Order of the Tribunal made by another adjudicator. If the tenant was unhappy with the process that led to the making of the February Order, she ought to have applied for a rehearing.
This application was made 8 days after the date of the February Order and seeks Orders contrary to the terms of that Order. In my view, that part of the tenant’s application should be treated as seeking a rehearing of the landlord’s application and referred back to the adjudicator who made the Order.
Despite the February Order apparently resolving all issues between the parties relating to the tenancy, I find that it would not be just to deny the tenant the opportunity to have new claims heard, that were not before the Tribunal when the February Order was made on the landlord’s application.
I therefore determine the tenant’s claims and direct that this application also be treated as an application for a rehearing of application 4753989 and referred back to the adjudicator who made the February Order. Healthy Homes compliance
This tenancy began on 19 October 2022. The landlord would ordinarily need to ensure the premises complied with the Healthy Home standards 120 days thereafter (see Residential Tenancy (Healthy Homes Standards) Regulations 2019).
The landlord claims that the regulation 31 of those Regulations exempts the landlord from that obligation, because before the tenancy began the landlord had obtained Council consent to demolish the premises.
The relevant parts of regulation 31 provide that: “The landlord need not comply with [healthy homes standards] if,— (a) before the commencement of the tenancy, the landlord applied for consent to demolish or substantially rebuild the premises, with that work to begin within the grace period; and (b) as at the commencement of the tenancy,— (i) the application is still pending; or (ii) if consent was granted before the tenancy commenced, the consent remains in force. (2) This exemption ceases to apply if, during the term of the tenancy, any of the following occurs: (a) the consent lapses or is terminated (b) the grace period [the period of 12 months beginning on the date of commencement of the tenancy] expires.....”
The landlord has provided evidence which proves that a consent for subdivision works, including demolition of the premises, was in place before the tenancy began. The consent is dated 27 July 2022 and remains effective.
That being so, the exemption from compliance with Healthy Homes standards applied. Under regulation 31(2), the exemption ceased to apply when the “grace period” of 12 months from the date the tenancy began, expired.
As noted, the tenancy was for a fixed term ending on 18 October 2023. No notice was given under s.60A to prevent the tenancy becoming a periodic tenancy on expiry of that fixed term. The tenancy therefore continued after that date as a periodic tenancy, until it ended on 4 December 2023.
Under regulation 31(2), the exemption from compliance with Healthy Homes standards ended on 19 October 2023. As the exemption ended before the tenancy ended, there was a technical breach of the landlord’s obligation to ensure the premises complied with Healthy Homes Standards.
By that breach, the landlord committed an unlawful act (s.45(1)(bb) RTA).
It was clear to both parties before the fixed term ended, that the intention was for the tenancy to end on 19 October 2022 and that the premises were to be demolished. The tenancy only continued beyond that date because the tenant was unable to find anywhere else to live and the landlord did not take steps to have the tenancy ended and recover possession.
In those circumstances, with the exemption substantively applicable, I find that it would be unjust to the landlord to award exemplary damages for her failure to ensure that the premises complied with Healthy Home standards. Heating
The tenant’s evidence is that before the tenancy began, she was given an assurance by the property manager that a heat pump would be installed. That would be consistent with her evidence about her daughter’s vulnerability and the need for her to be living in a warm, dry home.
It is not disputed that no form of heating was provided.
The landlord has provided a signed statement said to be from the property manager who arranged the agreement, stating that the tenant was told that a heat pump would not be installed because the premises were to be demolished. The property manager was not made available to speak to that statement.
This is the tenant’s claim to prove, and the evidence does not establish on balance that there was an agreement between the parties that a heat pump would be installed. That would not be consistent with the landlord’s position on other expenditure where it is clear that the landlord had no intention of spending any money on the property because it was going to be demolished.
While the landlord was not required to provide heating meeting the Healthy Homes heating standard, she was nevertheless required to provide some form of heating by regulation 6 Housing Improvement Regulations 1947 which requires that, “Every living room shall be fitted with a fireplace and chimney or other approved form of heating.”
By failing to comply with that regulation, the landlord has breached her obligation under s.45(1)(c) to “comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises...”
Breach of that obligation is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
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) Residential Tenancies Act 1986.
There is no doubt that the landlord’s decision not to provide any heating in the premises was intentional. The effect on the tenant was to require her to provide her own heating source, bearing in mind that the heating provided did not, at that time, need to meet the Healthy Homes standard.
I can only assume that in this instance, as with other expenditure, the landlord’s intention was to minimise spending on a property that was to be demolished. While that is understandable, it is not acceptable for those savings to be at the expense of the landlord’s legal obligations to the tenant.
Balancing those considerations, I find that an award of exemplary damages of $750.00 would be just Healthy Homes information
Even if the premises were exempt from the requirement to comply with Healthy Home standards, the landlord was nevertheless obliged to comply with the requirement in s.13(1CA) that the agreement include a signed statement that, “....on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).”
Failure to provide that statement is an unlawful act for which exemplary damages of up to $750.00 may be awarded.
The tenant’s evidence is that she was never made aware that the landlord claimed an exemption from compliance with Healthy Homes standards and would not make the premises compliant. That evidence is to a degree corroborated by her decision to pay for a Healthy Homes compliance report which would have been of little use had she known that compliance was not required.
The tenant was entitled to know, before committing to a fixed term tenancy, that the premises she was renting would not be brought to compliance with Healthy Homes standards. The premises were in fact far from compliant, as shown in the [company] assessment.
The tenant says that if she had been provided with a truthful statement from the landlord that because of the exemption the landlord would not make the premises compliant, she would not have entered into the tenancy. Given in particular her daughter’s needs that is possible, although I do also need to take into account that the tenant had an ACC assessment of the premises completed, that she also relied on.
In the circumstances, particularly given the fundamental difference for the tenant in renting premises that would be brought to compliance within the prescribed 120 day timeframe and premises that would not be made compliant for the whole of the 12 month term, I find that an award of exemplary damages at the higher end of the range would be just.
Because the landlord failed to provide that statement, the tenant was justified in obtaining a Healthy Homes assessment, which vindicated her view that the premises were not compliant. That is a loss caused by the landlord’s breach and the tenant should be compensated for the cost. Failure to Maintain
The premises’ exemption from compliance with Healthy Home standards does not mean that the landlord is relieved of the obligation to ensure that the premises are maintained in an adequate state of repair during the tenancy (s.45(1)(b)).
The deck was assessed by ACC as in need of repair. The Healthy Homes assessment undertaken toward the end of the tenancy and notes its poor and dangerous condition. That is apparent from the photographic evidence.
The landlord was notified of the need for repair. The repair undertaken by the landlord was not adequate.
The landlord breached her obligation to ensure the deck was kept in an adequate state of repair and the state of the deck meant that it could not safely be used. The tenant gave evidence of her son having been hurt by the uneven deck treads.
Inability to safely use the deck had an impact on the tenant’s use and enjoyment of the premises for which compensation should be awarded. I assess compensation at $30.00 per week for the term of the tenancy.
Failure to meet that obligation is also an unlawful act for which exemplary damages of up to $7200.00 may be awarded (s.45(1)(b) and (1A) RTA).
Having regard to the considerations in s.109(3) it seems clear from the evidence that the landlord’s motivation was in wanting to minimise the amount of money spent on premises that were to be demolished.
Again, while that is understandable, it is not acceptable that the saving be at the expense of the tenant’s entitlements and safety. There were repairs that were obviously required but not adequately undertaken.
I find that it would be just to make a modest award of exemplary damages in addition to the compensation awarded. Window Stays
ACC sked the landlord for approval to instal window stays, at its cost, to provide better safety for the tenant’s daughter.
That was a minor change in terms of s.42B for which a landlord may not unreasonably withhold consent. It is unlawful for a landlord to withhold consent unreasonably (s.42B(3) and exemplary damages of up to $1,500.00 may be awarded.
The evidence persuades me that an appropriate request was made to the landlord. The landlord says that she was in communication with ACC about the matter before the application was withdrawn on 6 January 2023. The available evidence indicates that there was no reasonable response by the landlord to ACC’s request and no consent was given by the landlord. As a result, the stays were not installed. The landlord thereby committed an unlawful act.
No reasonable reason for not giving consent is apparent from the evidence. The work was being done at the cost of ACC and the premises were to be demolished so no reinstatement would be required. The landlord knew that the stays were recommended by ACC as a safety improvement for the tenant’s daughter. It simply seems that the landlord did not give priority to something that was of significant importance to the tenant.
I find that an award of exemplary damages toward the higher end of the scale would be appropriate. Lawns and carpets
The tenant claims that the lawns at the premises needed mowing at the start of the tenancy and that the carpets needed cleaning.
The tenant has provided evidence of having paid $100.00 to have the lawns mowed at the start of the tenancy, the invoice notes, “Remark overgrew long grass”
The landlord says that the lawns were mowed before the tenancy began and has provided an invoice proving that they were mowed, but that invoice is dated a month before the start of the tenancy.
On balance I am satisfied that the lawns at the premises needed mowing when the tenancy began. The landlord breached her obligation to provide the premises in a reasonable condition (s.45(1)) and the tenant should be compensated for the costs of having the lawns done.
The evidence provided by the tenant does not prove that the carpets at the premises were not adequately clean when the tenancy began, and that compensation should be awarded to her. Water leaks
The tenant says that there was a leak in the toilet cistern that meant for several months she had to pay for water she was not using.
There is no evidence of communication between the parties showing the issue having been raised with the landlord. The tenant has provided Watercare bills covering the period that the water consumption is said to have been higher because of the leak but they do not show obvious consumption during that period out of line with other periods.
I do not find that claim for compensation proved. Shower heads
The ACC assessment recommended provision of handheld shower heads rather than heads fixed to the wall. The tenant bought new shower heads costing $86.20. She says the landlord agreed to pay for them.
As this is the tenant’s claim, she must provide evidence to prove the claim. In the absence of any evidence of that agreement, the claim for compensation as declined. Breach of Right to Quiet Enjoyment
This is not a claim raised in the application but was raised at the hearing.
The tenant alleges that on multiple occasions the landlord came to the premises without notice, making demands and intimidating the tenant to the extent that on 2 occasions the police were called.
The landlord says that the reason she went to the premises was mainly to collect the rent when the tenant wanted to pay in cash.
There is no evidence, from police records or otherwise, to corroborate the tenant’s claims. These are significant allegations. I do not find it proved on balance that the landlord acted in ways that breached the tenant’s right to quiet enjoyment of the premises.
As the tenant has been substantially successful, I reimburse the filing fee.

Tenancy Tribunal case 4810759 — Exemplary damages at 38 Caversham Drive, Torbay, Auckland 0630

At a glance

Tenancy Tribunal case 4810759 — Exemplary damages at 38 Caversham Drive, Torbay, Auckland 0630

At a glance

Award balance

Claims & awards

Order

Reasons

Is this application prevented by the February Order?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is this application prevented by the February Order?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions