Published tribunal order
Tenancy Tribunal case 4823180 — Healthy homes
Decided 14 Oct 2024 · Published 14 Oct 2024 · Application 4823180
- Healthy homes
Party names are redacted in the official published order.
Order
- The landlord’s name and identifying details including the tenancy address must not be published.
- [The landlord] must pay Aaron Moller and Kristy-Renee Moller $929.73 immediately, calculated as set out in the table below.
- The claim is allowed to the extent set out in this order and its
Reasons
. All other claims are dismissed. DescriptionTenant Compensation for breach HHS$909.29 Filing fee reimbursement$20.44 Total award$929.73 Total amount landlord must pay tenants$929.73
Reasons:
- Ms and Mr Moller attended the hearing in person. 1
- The landlord, who lives in Australia, attended by telephone.
- The tenants claim the landlord failed to comply with the healthy homes standards (HHS) and terminated their tenancy on spurious grounds.
- For remedy they seek compensation. Background
- The tenancy began on 16 December 2022 and was for an initial fixed term of a little over a year.
- The landlord being based in Australia, appointed a professional property manager, Point Property Portfolio Management, to manage the tenancy on his behalf.
- The landlord’s property manager commissioned a HHS report from a professional HHS assessor, AllClear, in November of 2022, which identified the tenancy premises did not comply with the standards for insulation, heating, draught stopping, and moisture ingress control.
- The tenants fixed the draught stopping issue soon after they moved in. However, neither the landlord nor his agent attended to the other issues within the statutory 120-day grace period, which expired on 14 April 2023.
- The tenants were having health issues, which they believe were exacerbated by the heating and insulation being below the standards. Eventually, on 22 May 2023, the tenants issued the landlord with a 14-day notice to remedy the non- compliance with the HHS by service on the landlord’s property manager.
- The property manager telephoned the landlord the next day, 23 May 2023. The landlord emailed the tenants that day apologising and stating he had thought the HHS report confirmed compliance.
- By 25 May 2023, AllClear reassessed the property’s compliance by way of communications with the property manager and the landlord, and found the property complied in respect to drainage, draught stopping, and insulation.
- On 19 June 2024, AllClear reassessed the heating standard as met because the landlord had installed a door to separate the living area from an open hallway. 1 I heard this matter at the North Shore District Court on 26 September 2024.
- The tenants remained unconvinced that the underfloor insulation complied with the standard, however. They thought the insulation had obvious gaps and doubted it had sufficient R-value to meet the standard.
- The landlord, without conceding that the insulation did not comply, nonetheless had the insulation topped up on 25 August 2024.
- The tenancy would have automatically continued after the fixed term ended in February 2024. However, in November of 2023, the landlord gave the tenants notice that the tenancy would end upon the expiry of the fixed term on the ground that he and his family were intending to return from Australia to live in the premises.
- The tenants, who had wanted to stay in the premises beyond the expiry of the fixed term, were dismayed to discover that the landlord was readvertising the premises for re-letting on 27 February 2024, less than a few weeks after they had had to move out. They believed the landlord wanted to get rid of them because they had exercised their legitimate rights as tenants.
- The issues for determination are: a. Did the landlord breach his HHS obligations? b. Was the landlord’s termination notice unlawful?
Did the landlord breach his HHS obligations?
- As set out in the introduction above, the landlord did not comply with his HHS obligations within the 120-day grace period.
- Most of the relevant facts are agreed. In summary: a. The tenancy began on 16 December 2022. Prior to the tenancy’s commencement, AllClear found the premises did not comply with the HHS for insulation, heating, draught stopping, and moisture ingress. b. The premises should have been HHS-compliant by 14 April 2023, but the only noncompliant standard that had been fixed was draught stopping, which the tenants had fixed. c. On 23 May 2023, AllClear reassessed the premises as meeting the HHS, except for the hearing standard. d. On 19 June 2023, AllClear reassessed the heating standard as having been met. e. On 25 August 2023, the landlord installed top-up insulation for the underfloor insulation. The underfloor insulation
- Whether the insulation complied from 14 April 2023 is in issue.
- In its original report from November 2022, AllClear found the ceiling insulation complied. Consequently, the tenancy agreement’s HHS statement recorded that the ceiling insulation complied. However, the HHS statement recorded for the underfloor insulation that “none of the premises” met the standard.
- On 24 May 2024, no steps having been taken to address the underfloor insulation’s non-compliance, the property manager emailed AllClear about the under floor insulation: Also – I was informed the R value of the insulation must be R3 in the North Island, is this correct? (the current appears as R 1). And that there are gaps in the insulation – so not sure it is compliant?
- A different AllClear person to the person who did the original HHS inspection report responded: R2.9 is required for the ceiling and R1.3 for the subfloor. What gaps are you referring to? I’m having a look at the pics not an all looks okay to me
- Subsequently, AllClear amended its report to record that the insulation complied with the standard.
- I set out the relevant legal principles. From 1 July 2019, all residential premises have had to be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- Looking at the photographs of the insulation, some corners of the blankets can be seen to be hanging down. There seems to be at least one significant gap as a result. The insulation appears to be in reasonable condition, although not overly thick at 75mm thickness.
- The later AllClear employee reversed AllClear’s earlier employee’s decision that the insulation was not compliant. However, nothing had been done to improve the insulation and the photographs of the insulation does show at least one gap, in my view.
- The tenants lived in the house and were intimately familiar with the state of the insulation. They believed the insulation had gaps.
- AllClear’s original employee physically inspected the underfloor insulation. The later employee relied on only a few photographs that the original employee had taken. The original employee was in a better position than the later employee to assess whether the insulation met the standard because they inspected the insulation in situ with the specific purpose of determining whether the insulation complied with the standard.
- It is probable the original assessor rejected the underfloor insulation’s HHS compliance because it had gaps. The tenants believed that to be the case also.
- It is more likely than not that the underfloor insulation did not comply with the standard.
- On that basis, I find it proven on the balance of probabilities that the underfloor insulation did not comply with the standard until 25 August 2023. Compensation for HHS non-compliance
- I accept the tenants experienced loss of amenity in the premises due to the landlord the premises not complying with the HHS.
- I calculate the tenants’ loss of amenity at 10 per cent for 14 April to 19 June 2023, by the end of which the premises met the HHS except for insulation; and at 5 per cent for 20 June to 25 August 2023, by the end of which the premises fully complied with the HHS.
- The total amount of compensation ordered is $909.29. Was the landlord’s termination notice unlawful?
- The tenants claim the landlord’s termination notice was given for the spurious reason that he (falsely) intended to move back to New Zealand to live with his family.
- The tenants consider the landlord’s notice was in truth given in retaliation for them exercising their tenants’ rights.
- A landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. 2 A notice infected with a desire to “get back” at the tenant for exercising their rights 2 Residential Tenancies Act 1986 (RTA), s 60AA. against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 3
- The landlord lived and worked in Australia at that time (and still does). He said that in late 2023, he anticipated that he could return to New Zealand to live with his family in early 2024 and keep his Australian job by working remotely. So, he had his agent give the tenants notice on 9 November 2023, terminating the tenancy for that reason.
- He purchased a one-way air ticket to New Zealand on 8 October 2023 for his infant child, wife, and himself to travel on 26 February 2024. Unfortunately, he says, his company’s policies on working from home changed quite abruptly in early 2024, and he was told that he could not work entirely remotely as he had anticipated. As a result, he and his family did not even return to New Zealand and the cost of the air tickets was forfeited.
- I found the landlords evidence plausible at the hearing. However, it was not corroborated by other evidence. In particular, the landlord did not provide any evidence from his employer. Consequently, I gave the landlord the opportunity to file evidence from his employer before I decided this issue.
- The landlord has filed an email from his manager dated 26 September 2024 which says: In 2023, [the landlord] planned to relocate to New Zealand with his family while continuing his role as Senior Enterprise Account Executive. However, at the beginning of 2024, we received an update from HR that our global working policy had changed, now requiring employees to spend at least 50% of their time in the office. Following this update, we explored the possibility of [the landlord] moving to New Zealand as planned. Unfortunately, due to the policy change and the absence of an office in New Zealand this was not feasible.
- Following this corroboration of the landlord’s narrative, I am persuaded on the balance of probabilities that the landlord’s termination notice was given for valid genuine reasons.
- It follows that the tenants have not proved this claim and it is dismissed. Application fee
- The tenants have substantially succeeded in their claim. 3 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”
- The landlord is directed to reimburse them for the filing fee. Non-publication
- The landlord sought non-publication of his name and identifying details.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 4
- The landlord has substantially succeeded in proceedings by successfully defending the unlawful notice claim. I do not consider that publication is in the public interest or is justified because of the landlord’s conduct or any other circumstances of the case.
- Non-publication is granted.