What was the outcome of Tenancy Tribunal case 4817524?

The tribunal order states: Ōtakanini Tōpū Incorporation must pay Laikynn Stead-Hill $5,061.15

How much money was awarded in case 4817524?

Compensation: Failure to maintain- r…: $1,920.00 awarded to tenant; Compensation: Water Tank Refills X 4: $1,620.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $184.00 awarded to landlord; Masterbedroom Door And Kitchen: $1,194.85 awarded to landlord

What type of tenancy dispute was case 4817524?

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

Where can I read the official tribunal order for case 4817524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10748766-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4817524?

The tribunal order states: Ōtakanini Tōpū Incorporation must pay Laikynn Stead-Hill $5,061.15

How much money was awarded in case 4817524?

Compensation: Failure to maintain- r…: $1,920.00 awarded to tenant; Compensation: Water Tank Refills X 4: $1,620.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $184.00 awarded to landlord; Masterbedroom Door And Kitchen: $1,194.85 awarded to landlord

What type of tenancy dispute was case 4817524?

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

Where can I read the official tribunal order for case 4817524?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10748766-Tenancy_Tribunal_Order.pdf.

2127 Kaipara Coast Highway, Makarau, RD 4, Warkworth Tenancy Tribunal Case 4817524 — State of repair

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Reasons

Claims and awards in Tenancy Tribunal application 4817524 — net $5,061.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Masterbedroom door and kitchen	$1,194.85		Repairs: Masterbedroom door and kitchen
Lock/key replacement: (Barrel change and keys	$184.00		Lock/key replacement: (Barrel change and keys
Exemplary damages: Failure to maintain		$2,400.00	109. I make an order for the landlord to pay $2,400.00 in exemplary damages for its breaches of s45(1A) of the RTA.
Compensation: Water tank refills x 4		$1,620.00	Water tank refills x 4
Compensation: Failure to maintain- rent rebate for		$1,920.00	Failure to maintain- rent rebate for
Exemplary damages: breach of quiet enjoyment		$500.00	128. I make an order for the landlord to pay $500.00 in exemplary damages for the landlord’s breach of s38(3) of the RTA.
Total award	$1,378.85	$6,440.00
Net award		$5,061.15
Bond		$760.00
Total payable by Landlord to Tenant		$5,061.15

Both parties attended the hearing.

The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The tenant has made a cross application for compensation, exemplary damaged, refund of the bond and reimbursement of the filing fee. Background

Ōtakanini Tōpū Incorporated, the landlord, was founded in 1959 when several whānau amalgamated land and leased it out.

The landlord leased the land the tenant’s house was located from the owner of the land. The Deed of Lease shows the 10-year lease went from 1 February 204 to 31 January 2024.

The landlord hired a farm manager to manage the farm and the Committee of Management managed the tenant’s tenancy.

The tenant is related to most, if not all of the Committee of Management. She is a young woman with three young children that I was told were aged 3.5 years, 2 years and 1year.

The Committee of Management members that represented the landlord at the hearing conveyed to me that the backbone of Ōtakanini Tōpū Incorporated is its strong cultural values. They confirmed to me that the entity channels a powerful understanding of Māori culture, which aligns with local Iwi, and informs a policy to firstly employ whānau. In keeping with these strong cultural values, Ōtakanini Tōpū Incorporated also sought to provide housing to the tenant, as when the leased land came with a house, providing housing to whānau first was its focus.

The tenant confirmed the house has three bedrooms and one bathroom, is set on 138.07 hectares and the house is approximately 140sqm.

The tenant confirmed she and her three children lived in the house. Her Dad came to visit and stayed for periods of time, as did her 7-year-old nephew. Her sister came to visit from time to time, as her mother-in-law lived down the road, but her sister did not stay at the house.

The house is set in a rural setting, runs of tank water, and has a septic tank for wastewater and sewage.

Much of the tenant’s claim hinge around the Committee of Management’s management of the water and wastewater system. LANDLORD’S CLAIMS

Is the tenant responsible for the damage to the premises?

Did the landlord have to return the premise to the owner in a reasonable state of repair?

The landlord claims the tenant caused careless damage to the premise that it had to pay to have repaired before its 10-year lease ended in January 2024.

The tenant provided an email from the developer saying the land was being developed and the house was going to be demolished. As such, the tenant claimed she should not be held responsible for any damage to the house as it was not going to be tenanted again or sold. She begged the question, why should she be held responsible to pay for damage to a building that is set to be demolished after she moved out.

The landlord directed me to its Deed of Lease. Specifically, clause 8.1.1 which reads “The Lessee shall keep the interior of all buildings and fences, ditches, bridges, stockyards, gates, and things on or to be erected on the land in good repair and condition and at the expiration of or sooner determination of the lease shall yield them up in good repair and condition (subject to the condition upon which those improvements were at the Commencement date).” Clause 8.1.2 provides that this obligation does not include fair wear and tear.

The tenant’s tenancy started on 21 December 2021 and ended on 24 December 2023. The Deed of Lease required the landlord to end the tenancy by the end of January 2024 at the latest.

The landlord provided an email from the owner of the land, dated 8 December 2023, offering the landlord an extension of the lease for a further 6 to 12 months. The landlord’s response to that email shows it had “already begun the clean out process” and “would like to keep the lease until the original contract of the 31/01/2024”. This clean out process included ensuring the tenant’s tenancy would end by the end of its lease.

I am satisfied that at the time the landlord handed back to property to the lessor, it was required to meet its obligations under clause 8.1.1 of its lease and in accordance with this obligation, the Committee of Management engaged one of the member’s husband’s business to undertake the repair work required. The tenant made much of this whānau connection intimating that somehow the charges for the work were higher than they may have been if the work had been done by a third-party independent contractor. I am reminded that the landlord has a policy to firstly employ whānau and that the engagement of a whānau affiliated building contractor is in keeping with this policy. The tenant securing the tenancy at a very cost-effective rental was a benefit derived from the same policy.

The landlord provided a quote for the remedial work undertaken by the whānau affiliated building contractor and the invoice for the work completed. The invoice rate is very reasonable for the work carried out relative to the potential costs the landlord could have incurred if it had engaged a third-party independent contractor. In addition, the landlord pointed out that the contractor had managed to reduce the actual cost of the repairs significantly from the quote as it had been mindful the costs would ultimately be borne by the tenant.

I am satisfied the remedial work had to be undertaken by the landlord, as part of its lease obligations, and that it got the work done at a reasonable price.

I accept, based on the tenant’s evidence, the house was to be ultimately demolished by the owner of the land, but the 8 December 2023 email to the landlord shows that the owner did not intend to start that process for another 6 to 12 months and had an intention to lease the land and buildings out past the end of the landlord’s lease. Did the tenant return the premise back to the landlord in a reasonable state of repair?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The landlord claimed the tenant caused the following damage to the premise during the tenancy: a. Took down the doors to the entry of the master bedroom and the master bedroom wardrobe doors and rehung them so badly at the end of the tenancy that they were not fit for purpose and had to be rehung to work properly; b. The tenant lost the key and the lock had to be re-barrelled and new keys cut; and c. Made a hole at the bottom of one kitchen cupboard and damaged the existing wall hung kitchen cupboards.

The landlord says this damage is more than fair wear and tear, the tenant caused this damage either intentionally or because of her careless acts, and she should be held liable for the repair cost.

The tenant accepted she had lost the keys and took responsibility for the cost to remedy the lost keys. I award the landlord compensation it sought for the cost it incurred for re-barrelling and rekeying the premise.

The tenant accepted she had taken down the master bedroom doors as she says they did not work properly at the start of the tenancy and were not repaired by the landlord. She confirmed she had not asked the landlord to repair these and that she had rehung them so badly at the end of the tenancy that they did not work. I award the landlord compensation it sought for the cost it incurred for this remedial work.

The tenant stated she did not make the hole and it was like that when she took on the tenancy. Further, she stated there was no wall hung kitchen cupboards when the tenancy started. As such she claimed she should not be held liable for the cost of this repair/replacement. The landlord produced affidavits with photographs of the premise at the start of the tenancy, and when the whānau affiliated building contractor had been preparing the premise to meet the healthy homes standards. I accept the cupboards were there at the start of the tenancy, were damaged at during the tenancy, and am satisfied the tenant should be held responsible for the cost of this repair. The tenant has not disproved liability for this damage.

The amounts ordered are proved.

I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.

TENANTS CLAIMS

Section 45 of the RTA Breaches

Laikynn Stead-Hill claims that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986 to repair and maintain the premise in a reasonable condition and that it failed to comply with the healthy homes standards.

The basis of these claims by the tenant are that the water and wastewater system of the house was not maintained in a reasonable state of repair and that as a consequence she and her whānau suffered periods without access to water, were subject to blocked drains, downpipes, gutters and a water pump that kept breaking down. A. Breach of healthy homes standards

Laikynn Stead-Hill 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). Laikynn Stead-Hill considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.

The tenant’s tenancy commenced on 20 December 2021, so the landlord was required to comply with all the healthy homes standards within 90 days of the tenancy commencing.

The tenant says the landlord did not comply with the moisture ingress and drainage standard, which requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.

The HHS does provide exemptions in specific circumstances.

The landlord has confirmed in its healthy homes assessment report (dated May 2021 and undertaken by third independent company engaged by Barfoot’s, who were managing the property at that time) and in the tenancy agreement: a. The house was fully complaint with all the healthy homes standards at the start of the tenancy; b. The house was not exempt from the moisture ingress and drainage standard; and c. The house met the moisture ingress and drainage standard.

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).

In this case I have determined that the landlord has proven the premise met this standard and that the tenant’s claims are a failure to maintain the premise to these healthy homes standard and not that it has breached the moisture ingress and drainage standard itself.

I dismiss the tenant’s claim for exemplary damages for breach of the moisture and drainage standard for lack of sufficient evidence to prove her claim.

The landlord has successfully defended this claim by providing evidence that, during the tenancy, the premise had efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains.

I now turn to whether these systems were repaired and maintained to the standard required, as set out in s45(1)(b) of the RTA. Failure to maintain

Laikynn Stead-Hill claims that the landlord has breached their obligations under section 45(1)(b) of the RTA and that it did not provide and maintain the premises in a reasonable state of repair. More specifically, that it did not repair and maintain the water and waste water systems that she relied on for the efficient removal of wastewater or the collection and storage of water, as the premise did not have a reticulated water supply.

Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .

There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .

Breaching the landlord’s s45(1)(b) 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 Residential Tenancies Act 1986.

It is hard to separate all the water and wastewater systems as it is a combination of the management of all these things that have led to the tenant’s failure to maintain claims.

I will address each part of these systems and will make an overall finding of the management of these systems in their entirety. Water catchment system (water tank, gutters and downpipes

Landlords must make sure enough water is available at their rental properties. If there is no piped water supply and must also make sure enough water can be collected and stored.

If the water supply is from a tank, the landlord must pay for a full tank of water at the beginning of the tenancy, and thereafter the tenant is responsible for paying for water tank refills. The tenancy agreement should record that the tenant will arrange and pay for any refills. The tenant’s tenancy agreement is silent on who is responsible for the cost of any water tank refills. As such, the landlord was required to provide the tenant with a full tank of water at the beginning of the tenancy, and thereafter the tenant was responsible for paying for water tank refills.

The law requires that the landlord provides the tenant with a water tank of an appropriate size. An average house should: a. Have a tank of about 5,000 gallons (22,500 litres); b. Be properly connected to a roof of reasonable size so rainwater can top up the tank; c. Have no leaks or contamination.

The landlord confirmed the premise had a water tank that held 25,000 litres. It also provided a text message from the tenant, dated 4 December 2021 at 1:06pm, that confirms the tenant has checked the water level in the tank and that the water 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. tank was full. This is sufficient proof that at the start of the tenancy the 25,000- litre water tank was full.

Prima facie, the tenant had responsibility for the cost of any water tank refills thereafter.

The landlord says the tenant had more than her and her three young children living at the premise. She confirmed her dad and 7-year-old nephew stayed for periods of time but were not living permanently at the premise.

The tenant also confirmed the children all bathed in the same water and that she was careful with her whānau’s level of water usage.

I am satisfied that it would be appropriate to estimate the whānau’s water needs based on a four-person household, given I have not been provided with what periods of the tenancy the dad and nephew were staying there.

While the amount of water used can vary significantly by household, there are some averages we can use to make some rough calculations. In Auckland, for example, the BRANDZ Study Report SR469 [2022] shows the average water usage per person is between 140 and 170 litres per day. That means each person uses on average, somewhere between 51,100 litres and 62,050 litres per year. A family of four, will need to harvest between 204,400 and 248,200 litres a year if a water tank is the main or single source of water.

NIWA says the average rainfall in Auckland is 1,114mm per year. I have estimated this property as being around 140m². 1,114 litres x 140m² = 155,960 litres of harvestable water being required by the tenant’s household per year. This shows the tenant would not be able to collect enough water in an average year to meet her household demand, so would need to top that up with a water delivery. 204,400 to 248,200 demand litres minus 155,960 litres of harvestable water leaves a short fall of between 48,440 and 92,240 litres per annum, or between 1.9 and 3.7 full tank refills per year.

However, it rained a lot in Auckland in 2023. The NIWA charts show a cumulative rainfall at NIWA weather stations in Auckland for 2023, compared to all other available years for each Auckland station. The station with the longest history is Auckland Airport, and from 1963 to 2022 the annual average rainfall was 1,113mm per year. In comparison that station recorded a total of 1,723mm in 2023 (about 1.5x the average). Just over 2,000 mm of rain was recorded in Albany (north Auckland) and Whenuapai (west Auckland). 6

Therefore in 2023, there would have been no water shortfall between water available for harvesting and the tenants needs. 6 NIWA statistics for the Auckland Region: https://niwa.co.nz.

The tenant gave evidence she had to get water tank refills four times during her tenancy: a. 22/02/22; b. 12/05/2022; c. 26/05/2023; and d. 08/07/2023.

The tenant stated that each water tank fill consisted of 11,800 litres as the suppliers couldn’t get the larger water tankers into the property.

The tenant says each water tank refill cost her $405.00.

Based on the water harvest and demand figures outlined above, the tenant should have only had to have the water tank refilled between 2 and 4 times in 2022 and not at all in 2023.

The tenant says she had concerns about the guttering and downpipes being blocking during the tenancy and claims these filled up with debris that she considered came from a number of large polar trees on the property.

Poplar trees are often grown for erosion control in pasture. It is well known that poplar trees grow quickly and are effective for soil conservation, stock shelter, shade, fodder and they are also used as ornamental trees in rural settings. These trees are often planted as shelter belts. 7

The tenant says there are large polar trees down the right-hand side of the driveway and on left side of the house at the front. There was dispute between the parties where these trees were placed in relation to the house and how tall they were. I am satisfied that there were poplar trees on the property, that it was probable these trees resulted in debris getting into the water management system of the house, and that this would lead to the gutters and downpipes of the house needing to have gutter screens and leaf guards installed at the top of downpipes to prevent leaves and debris from entering the tank. The alternative was to have the landlord clean the gutters and downpipes out on a reasonably regular basis to remove this debris.

The tenant says the landlord did not install gutter screens and leaf guards at the top of downpipes to prevent leaves and debris from entering the tank and failed to have these cleaned on a regular enough basis to remove the debris that built up. Therefore, the tenant says her ability to catch the maximum amount of rainwater was compromised and led to her having to get more water tank refills 7 Ministry of Agriculture and Forestry. Forest and Plant Research. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjflaCBwIyIAxUD yjgGHRDkKyYQFnoECDQQAQ&url=https%3A%2F%2Fwww.poplarandwillow.org.nz%2Fdocuments %2Fbrochure-5-poplars-for-the-farm.pdf&usg=AOvVaw0DtvO6rUcipEcuyW1olP2V&opi=89978449. than she should have, despite being overly careful about the family’s water usage.

The landlord confirmed it had the gutters and downpipes cleaned once a year in August. Further, it had the gutters and downpipes cleaned out in August 2021, 4 months before the tenancy started. The landlord provided the Tribunal with its maintenance schedule for the property which records the following water and wastewater system relevant maintenance items: a. Gutter and down pipes to be cleaned once a year, or more frequently if necessary, and repairs to be undertaken as required (inspect and clean gutters and remove any overhanging branches); b. Clean blocked drains/gutters/traps/sinks as required and repair faults; c. Have electrical pumps serviced by a specialist company every 6 to 12 months and replace as required; d. Septic tank and aerated wastewater treatment system: i. Clean the pumps and filters every 6 months; ii. Have the soakage area serviced by a specialist every 6 months or in accordance with the authority or supplier requirements.

The tenant says she had run out of water and had purchased 11,800 litres of water on 12 May 2022. She was not satisfied that she had used enough water to warrant needing to buy water and had and had reason to believe the gutters were blocked with debris because of water overflow on rainy days. She wanted this issue addressed urgently.

The tenant provided evidence that she first raised an issue with gutters being blocked on 14 May 2022.

The landlord says, on 14 May 2022, it had given its farm manager the contact details for the house wash contractor, which had undertaken the last clean number. The farm manager had come back to the Committee of Management and informed it that he had been unable to reach the contractor. It says that it then offered to call the contractor but did not. None of this was communicated to the tenant.

When tenant followed up the Committee of Management on 29 May 2022, she was told the landlord was going to get the house and gutters cleaned in August 2022. When she explained they were blocked in 5 places, the farm manager was sent to clean them out on 30 May 2022. The tenant says she was home when he did so and that she witnessed a large amount of debris coming out of the gutters. She says the farm manager confirmed to her that the gutters and downpipes were significantly blocked.

The tenant confirmed that once the farm manager had cleaned the gutters and downpipes on 30 May 2022, she had no further issues with water flow.

The landlord stated that once the gutters were cleaned, they should not have kept blocking up. Given the property had poplar trees on it, the house should have had gutter screens and leaf guards installed at the top of downpipes to prevent leaves and debris from entering the tank and blocking the entire catchment system. The landlord did not do this. As such, it would have been reasonable for it to have had the gutters and downpipes checked and cleaned more regularly than every 12 months.

On 25 May 2023, the tenant ran out of water again and was concerned there was an issue with the water tank as there had been such heavy rainfall from January of that year.

On 26 May 2023, the tenant asked the landlord if the water tank could be investigated. She informed it there may be a leak because there had been a lot of rain and the water tank was empty and that she had purchased 11,800 litres of water that day to tide her over until the water catchment system issue was identified and remedied.

The landlord says it sent Witai to check the water tank, but he informed it he couldn’t tell if there was a leak or not as the ground was too wet. Witai said he couldn’t tell if gutters blocked again. No further investigation was undertaken by the landlord.

The tenant says she ran out of water again by 8 July 2023, so she followed up the landlord to see what else it had done to investigate her concerns. She says that this was the middle of the winter in a year with record rainfall levels and there was no other explanation for her running out of water again in just 48 days.

The group chat shows the landlord arranged a plumber on 13 July 2023 to clear the gutters and check the water tank and the downpipes. The parties confirmed the plumber unblocked the gutters and cleared the downpipes and that they were full of debris.

No issue with water tank was found.

I find that the landlord did not have the water catchments issues investigated and remediated in a reasonable timeframe in all the circumstances and that it should have had a more regular maintenance programme for the water catchment system components or installed gutter screens and leaf guards to prevent such regular debris issues in order to ensure the tenant could maximise the catchment of all the available rainwater.

Under section 45(1)(b) of the RTA, the landlord had an obligation to investigate and repair the issues with the water catchment system the tenant repeatedly to brugh to its attention, within a timeframe that is reasonable in the circumstances. As already stated, the Wellington District Court in Collins v Professionals Hutt City Ltd, held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”.

Blocked gutters and downpipes in a city dwelling have far less urgency to address than those on a rural property where the tenants are reliant on these being kept clean and clear to preserve the quantity and quality of their water supply.

I find the landlord did not take all reasonably practicable steps or act in a timely manner when issues were raised by the tenant and that these failures led to the tenant having to purchase water that she may not have had to if the landlord had maintained the water catchment system to a reasonable standard. As such, I find the tenant had to purchase water because of the landlord’s breach of its s45(1)(b) obligations and award the tenant compensation for the four water tank refills she purchased during her tenancy. Septic tank and wastewater system

Auckland Council states septic tanks in the Auckland region must be pumped out at least every three years and must be fitted with a septic tank outlet filter to prevent solids entering the disposal field. It also says that the soakage area should only have small plants planted on it.

The general maintenance of the water pump and septic tank is the landlord’s responsibility. However, if the tenant damages the pump (e.g. by letting the pump run when the tank is empty) she could be held responsible for the cost of repairs for this careless damage. The landlord should provide written instructions on how the tank water system works to prevent this type of inadvertent careless damage.

The tenant says on 21 December 2021, she reported an issue with basin in laundry to the landlord. She was told to use drain cleaner to clear the blockage. At this time, she was told by the farm manager that the “crust on top of septic tank may need to be smashed”. She had no idea how to do this and there was no evidence provided to the Tribunal to prove this was done by the landlord.

On 7 April 2022, the tenant reported a second blockage issue to the landlord via the group chat. This blockage was in the kitchen sink, located in the upstairs part of the house. The tenant says this blockage was causing water to drip onto the top shelf of the bench from the pipe under the sink. The tenant was told by the landlord to call Water FX, its contract specialist for these types of issues.

12 April 2023, the tenant says the kitchen waste pipe was replaced and the blockage removed. At this time, Water FX reported that the issue was below ground. It returned with a digger and dug up overflow pipe and told the tenant the wastewater system needed to be replaced as it was corroded. Water FX said it needed landlord’s consent to proceed. The parties confirmed this work was never done.

The tenant says that despite the landlord failing to have this work done, she had no further drainage issues of any consequence. She was told to be careful with the wastewater and she says she was.

The tenant confirmed she received several letters from Auckland Council about the wastewater system needing to be checked and maintained and that it had not received the maintenance records it required. The tenant says it passed these letters on to the landlord, but no further maintenance was done on the septic tank.

The landlord says every house got that proforma letter from Auckland Council. The landlord says the septic tank was not cleaned out as it didn’t need to be cleaned out. However, the Auckland Council 4 May 2023 letter states it was due for service April 2023.

The landlord says the farm manager may have submitted the required documents to the Council, but it was not sure if the septic tank had been pumped out and maintained in accordance with Auckland Council requirements.

The tenant produced a 15 June 2023 follow up letter from Auckland Council confirming the Council had not received any such maintenance records.

I am satisfied the landlord did not maintain the septic tank and the wastewater system to a reasonable state of repair and that because of that the tenant suffered two drainage blockages and she says at times the septic tank omitted a pungent odour.

I find the landlord in failing to maintain the water catchment and wastewater systems to a reasonable standard, has committed an unlawful act for which the tenant is awarded general damages (in addition to the $1,620.00 already awarded as compensation for the four tank water refills) in the form of a rent reductions for the stress, inconvenience and loss of amenity suffered by the tenant. This $1,920.00 rent rebate has been calculated as follows: a. For the period 14 to 30 May 2022 where the gutters and downpipes were blocked (16 days) at $30 per day. This totals a rent rebate of $480.00; and b. For the period 25 May to 13 July 2023, where the gutters and downpipes were blocked (48 days) at $30 per day. This totals a rent rebate of $1,440.00.

I do not award the tenant compensation for the wastewater systems breach as the blockages were addressed in a timely manner and the tenant does not appear to have suffered any loss of amenity, stress or inconvenience from the septic tank not being maintained in accordance with Auckland Council’s requirements.

I also find the landlord’s breach of its failure to maintain obligations was intentional. It had a maintenance schedule but did not undertake the necessary repairs and maintenance (including taking preventative measures available to it to ensure the gutters and drains did not require cleaning more than once a year) to keep the water catchment system functioning efficiently and effectively.

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.

I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. the landlord knew the water catchment system was critical to maximising the rainwater catchment and did not take steps to maintain this system or to address valid issues with this system, raised by the tenant, in a reasonable timeframe; b. the tenant suffered the stress and inconvenience associated with the loss of the amenity and of having to repeatedly follow the landlord up and remind it of its obligations under the RTA and for having to pay for water when it should have been able to rely on a higher catchment level of rainwater; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity she suffered; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.

I make an order for the landlord to pay $2,400.00 in exemplary damages for its breaches of s45(1A) of the RTA. This quantum is one third of the maximum penalty available, pursuant to Schedule 1A of the RTA, and I consider 33.3 percent of the maximum penalty to be appropriate in all the circumstances outlined above. Breach of quiet enjoyment and privacy

Laikynn Stead-Hill claims the landlord has breached her privacy and harassed her.

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 tenant says her Nan is on landlord’s Board. The tenant noted that Trish’s affidavit states Trish had a conversation with the tenants Nan about the issues the tenant and the landlord were having.

The tenant says her Nan came to the tenant concerned about the tenancy and wanted to know from the tenant what was happening. The tenant says this caused an argument in the house between the tenant’s brother and Nan and that they had argued about her conflict of responsibilities as a Board member and grandmother.

The tenant says her nan brought her and her siblings up and she had found it hard not to talk to her, as she always sought advice from Nan. She says she didn’t want to bring Nan into her tenancy issues and wanted these issues to remain private.

The tenant also says that at the end of December 2023, her other sister-in-law (Holly Ryan) came to and told the tenant she had heard about the issues from Michelle Hill, who is on the Committee of Management and is the tenant’s aunt. The tenant says this caused an issue between tenant and her sister-in-law and that her sister-in-law stated she didn’t want to be in the middle of these issues or to get involved as she respected Michelle Hill. Further, Holly’s partner Grayson works on the farm and Holly said she did not want these issues to affect his position on the farm.

Michelle Hill stated Trisha, the chair of the Committee, and Rebecca were handling the issues and that she had not been aware of these issues at the time the tenant was alleging Michelle had told her about them. I could not confirm what had occurred as the parties confirmed to me that Holly had declined to get involved in these proceedings, due to relationship with Michelle.

Michelle Hill confirmed to me she had been the Committee chairperson from 9 February 20202 to February 2021 and she had been nominated to help manage the house as an overseer as a committee member during her tenure as chairperson. She proved that all information about the tenancy issues were traversed on the group chat and that she was not party to that group at this time. Further, she says that no committee hui about the issue had occurred, so the committee did not know there was an issue.

The landlord confirmed at hui did take place around 9 April 2024 to prepare for the upcoming mediation to try to settle the tenancy dispute.

Trish confirmed she had contacted her Whaea, Aunty Marama, who is the tenant’s Nan, in late January 2024. She did so on a confidential basis to let her Whaea know that the tenancy issues the Committee was having with her mokopuna would be coming up at the Board hui. The landlord proved the tenant’s Nan sat in this hui, all minutes were recorded and the agreed response to the tenant’s claims were passed. Trish confirmed she had given her Whaea a brief heads up and had not had a detailed conversation about the issues. She says she had just given her Whaea enough information for her not to be blindsided at the hui.

Trish says that she tried to broker a settlement with the tenant prior to mediation but was unsuccessful. The parties attended a formal Ministry of Business, Innovation and Employment (“MBIE”) mediation on 2 May 2024 and the matter was still not resolved.

I am satisfied that Trish spoke in confidence to her Whaea, and that her Whaea acted as any Kuia/ grandmother would and went to ask her mokopuna if she was ok and what was happening. She was concerned and wanted to know what had led her granddaughter to sue the whānau before hearing it at the hui. Trish was acting as a niece and not as a Board member when she did this and did so to try to preserve her Whaea’s mana. I find this not to be a breach by the landlord of the tenant’s privacy or of her quiet enjoyment of the premise.

When Water FX came to clear the gutters, check the water tank and the downpipes on 13 July 2023, the tenant says she was not notified of a date and time Water FX was coming. The landlord, via Rebecca, confirmed to me she had contacted the contractor and asked him to go asap but she did not inform the tenant of the date of access as she had given the contractor the tenants number.

The tenant claims that the landlord breached its access obligations and breached her privacy and quiet enjoyment of the property. It is not sufficient for a landlord to rely on a contractor to notify a tenant of when it is coming to undertake repair and maintenance work. I find the landlord has committed an unlawful act by not checking when the contractor was going to the premise and that the tenant had been informed.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.

I am satisfied the landlord’s breach was intentional. It should have known its access obligations and that it was reasonably foreseeable that a breach of these obligations would breach the tenants right to quiet enjoyment. Therefore, I consider it to be just to require the landlord to pay a sum in exemplary damages because: a. The landlord did not inform the tenant the date and time it had arranged for Water FX to be at the premise when it should have; b. The tenant felt her privacy and quiet enjoyment of the property had been compromised and that she should have been reasonably able to rely on the privacy and quiet enjoyment she was paying rent for; c. it is in the interests of the tenant to receive exemplary damages for the breach of privacy caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.

I make an order for the landlord to pay $500.00 in exemplary damages for the landlord’s breach of s38(3) of the RTA. I find that a quantum of one sixth of the maximum penalty available to be appropriate given this was one isolated breach but the impact the tenant says it had on her was significant. Reimbursement of the filing fee

Because the tenant and the landlord have both substantially succeeded with their claims, I must reimburse both the filing fees. One cancels the other out, so neither has been awarded.

Reasons

Claims and awards in Tenancy Tribunal application 4817524 — net $5,061.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Masterbedroom door and kitchen	$1,194.85		Repairs: Masterbedroom door and kitchen
Lock/key replacement: (Barrel change and keys	$184.00		Lock/key replacement: (Barrel change and keys
Exemplary damages: Failure to maintain		$2,400.00	109. I make an order for the landlord to pay $2,400.00 in exemplary damages for its breaches of s45(1A) of the RTA.
Compensation: Water tank refills x 4		$1,620.00	Water tank refills x 4
Compensation: Failure to maintain- rent rebate for		$1,920.00	Failure to maintain- rent rebate for
Exemplary damages: breach of quiet enjoyment		$500.00	128. I make an order for the landlord to pay $500.00 in exemplary damages for the landlord’s breach of s38(3) of the RTA.
Total award	$1,378.85	$6,440.00
Net award		$5,061.15
Bond		$760.00
Total payable by Landlord to Tenant		$5,061.15