What was Tenancy Tribunal case 4844409 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 4844409?

The reconciled net award was $500.00.

What type of tenancy dispute was case 4844409?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4844409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10876368-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4844409 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 4844409?

The reconciled net award was $500.00.

What type of tenancy dispute was case 4844409?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4844409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10876368-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4844409 — 14-day notice

Claims and awards in Tenancy Tribunal application 4844409 — net $500.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$500.00

Claims and awards in Tenancy Tribunal application 4844409 — net $500.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$500.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord name and identifying details.
[The landlord/s] must pay [The tenant/s] $1,270.44 immediately, calculated as shown in the table below.
All other claims are dismissed.

Reasons

Both parties attended the hearing. [Tenant 1], the tenant, attended the hearing, along with her husband, [Tenant 2]. The landlord was represented by [The landlord’s representatives].
This tenancy began on 10 September 2022. It was initially for a one year fixed term and then became periodic. The rent is $1,000.00 per week and a bond of $4,000.00 was paid.
The tenant has filed an application for a work order, and claims breaches under the Healthy Homes Standard (HHS) and exemplary damages arising from unlawful acts by the landlord. In terms of the HHS, the tenant claims the house was not compliant in terms of insulation, drainage and moisture. The tenant considers the premises to be mouldy. It is also claimed the landlord did not provide the exemption certificate when requested, and the insurance information was not given within a reasonable timeframe.
The tenancy has now come to an end and therefore, a work order is no longer sought. The parties agree that this tenancy ended on 3 May 2024. The bond has been refunded in full to the tenant.
The tenant seeks compensation for alleged breaches by the landlord of its obligations under the Residential Tenancies Act 1986 (the RTA). The following issues were identified: • Electrical wiring in the roof • Pool cover mechanism needed repair. The tenant needed to spend additional time cleaning and maintaining the pool. • House was not clean at the start of the tenancy • Maintenance issues to be addressed
The tenant’s claims may be summarised below: • HHS: insulation, moisture, draught stopping • mould • exemption certificate not supplied • repair/maintenance: electrical wiring, pool cover, other maintenance. • cleanliness of the premises at the start of the tenancy • insurance information Legal framework
In this jurisdiction, it is the party making the claim who has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means that the tenant must establish, with evidence, that her claim is “more likely than not.” For the Tribunal to find in her favour, the tenant must be able to show that the landlord has been in breach of a legal obligation.
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
Exemplary damages are different. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest Healthy Homes Standards
The tenant claims the premises does not comply with the HHS in relation to insulation, moisture and draught stopping. It is also claimed the landlord did not produce the exemption certificate when requested and misled them regarding the exemption under the HHS. The landlord was asked for the exemption certificate on 24 February 2023, via email, and again on 21 October 2023, and also requests were made verbally. The landlord had produced an HHS report completed by [Healthy homes assessor 1], dated 1 May 2022, which they believed was fake and misleading.
The landlord states that before the tenant moved in, a heat pump and bathroom fan were installed. It was believed the home was insulated and complied with the HHS. Insulation was installed in March 2021, and the owner had informed [The landlord/s] that it was HHS compliant. It was accepted that the house did not comply in relation to the ground moisture barrier.
The landlord has explained that prior to the tenant moving in, the owner had investigated obtaining consent for building work, with work likely to involve demolishing the premises. The owner had believed the house was exempt. The building consent was not obtained. The tenant was happy to continue for another year. The exemption was a general exemption based on the landlord demolishing the premises. The landlord was unclear what “exemption certificate” was being sought by the tenant. A further HHS assessment was completed by [Healthy homes assessor 2], on 16 April 2024.
In response, the tenant states that at the start of the tenancy, it was not advertised as being for one year. They had wanted to stay for five years, as they wanted to be in the school zone for their child. They explained why the [Healthy homes assessor 1] report was unreliable, noting errors such as stating the drainage was compliant, and recording the presence of a heat pump when, at the time the report was completed, it had not been installed.
The tenant’s frustration when seeking information about compliance with the HHS is understandable. I agree that the [Healthy homes assessor 1] report is unreliable, in view of the factual errors identified. Regarding the exemption certificate sought, there may have been some confusion as to what was being requested.
In terms of the HHS requirements, I find the [Healthy homes assessor 2] report provides reliable and relevant evidence which assists in determining whether the premises complies with the HHS, as discussed below. Insulation
The landlord has obligations under section 45(1)(bb) of the RTA to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must 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
3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. 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 (1)(A) and Schedule 1A of the RTA.
The tenants accept that there was insulation in the ceiling at the start of the tenancy. They argue that it was not compliant at the time they lived there, and point to the [Healthy homes assessor 2] report stating that the insulation needed to be spread. The landlord notes that the owner relied on the insulation installer’s Producer Statement, and then, in response to the tenant’s photos, sought clarification.
There are two reports completed by [Healthy homes assessor 2]. The initial report is dated 16 April 2024. The landlord has clarified that the second report incorrectly records the same date. The initial report identified that some remediation was needed, noting “ceiling requires relaying.” The underfloor insulation was said to be fully compliant. The second report indicates the ceiling insulation was fully compliant. Over time, it can be expected that insulation may need to be topped up or re-laid, and so technically, in this case, some further work may have been required.
Accordingly, I am satisfied that, for the most part, the premises complies with the HHS in terms of the insulation requirements. In making this finding, I refer to the Producer Statement dated 30 March 2021 completed by [Insulation installer]. In terms of the ceiling, insulation (Pink Batts) was installed to part of the ceiling. This insulation had a rating of R3.2, being above the minimum of R2.9. It is further noted that the remaining area of the ceiling was either a flat roof or cathedral ceilings with no access. The installers also certified that the property complied with the 2019 Regulations.
I further note, from the Producer Statement, that underfloor insulation was also installed, with an R1.5 rating, being above the minimum requirement. This work was undertaken in March 2021, 1.5 years before the start of the tenancy. Therefore, I consider it reasonable for the landlord to rely on this evidence to support compliance with the HHS insulation requirements, as recorded in the tenancy agreement.
In view of the Producer Statement, I find that the landlord acted reasonably in indicating that the premises was compliant at the start of the tenancy. Later evidence shows some of this insulation needed to be re-laid. This work has been undertaken. Overall, in terms of the insulation, I find the landlord has met its obligations and this claim is dismissed. Moisture ingress and drainage
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] 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: • 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. • All boarding houses must comply by 1 July 2021. • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The moisture ingress and drainage standard 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.
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 the landlord accepts that there was no ground moisture barrier in the enclosed subfloor spaces. The [Healthy homes assessor 2] report has identified the need for the ground moisture barrier to be installed. This work was undertaken, and an invoice dated 10 June 2024 has been produced by the landlord. The tenancy agreement noted that the landlord was unsure whether the moisture ingress requirement was met, but the landlord undertook to meet this requirement. The landlord had 120 days from the start of the tenancy to comply.
The tenant has identified other issues with blocked drains and water coming into one of the bedrooms. The various maintenance issues are discussed below.
The [Healthy homes assessor 1] report also identified that further work was required to ensure the gutters and downpipes met the standard, noting that debris was present in the gutters and drainage, and the downpipes were not discharging away from the property.
Overall, this part of the standard was not complied with as required, and therefore, it can be said the landlord was in breach of the HHS in relation to the moisture ingress and drainage. Accordingly, the tenant is to be compensated. Taking into account the nature and duration of the issues, the resulting effect for the tenant, the amount of $500.00 is awarded.
The tenant also claims exemplary damages. For this to be awarded, the test for exemplary damages must be met. This is set out in section 109(3) of the RTA, and requires, as a precondition, that the person against whom the order is sought committed the unlawful act intentionally. An intentional act is a deliberate act, not a negligent or careless oversight, nor does it catch mere incompetence. In this case, I find that the required intent for exemplary damages is not met, so there is no separate award for exemplary damages. Draughts
[The tenant/s] claims that the landlord has failed to comply with the HHS draught stopping standard. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenant has provided photographic and oral evidence, noting there were gaps in the windows, and there was a broken window latch, as highlighted in the [Healthy homes assessor 2] report. In response the landlord states that the broken window latch was attended to, noting a work order and invoice for the work undertaken to remedy this.
In this case the [Healthy homes assessor 2] report only identified the broken window latch as being the reason for non-compliance with the draught-stopping standard. This issue has been attended to by the landlord. There is a technical breach in this regard. Repair, maintenance and mould Legal framework
The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with the healthy homes standards, and any relevant enactment in relation to buildings, health, and safety. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ... the obligation of the landlord, under s.45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, 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 may be. 4

Has the landlord failed to comply with their repair and maintenance obligations?

1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d) 4 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085

In the present case the tenant must be able to prove, on the balance of probabilities, that the premises was not in a reasonable state of repair, and that the landlord had notice of the problem and failed to repair within a reasonable time.
The tenant has identified various issues during this tenancy, and her emails to the landlord are noted. The tenant notes issues with leaks when it was raining. The window frame in the downstairs bedroom leaked into the room when there was heavy rain. In the application when seeking a work order, the tenant noted that rusted shower door needed to be replaced.
In response, the landlord has produced its own records of its investigations where issues were identified, and invoices for repairs.
Overall, I find the landlord attended to most issues when notified. The tenant accepts that she did not issue any 14 day notices to the landlord to address issues that remained unresolved. The landlord has produced individual invoices and a comprehensive list of expenses incurred for repairs and maintenance to the premises. Accordingly, as the evidence is evenly balanced, the tenant has not been able to show that the landlord has breached its maintenance and repair obligations. Mould
In relation to the issue of mould, as noted by the Tribunal in Semmens v Wadman, 5 mould is commonly present throughout all residential dwellings in New Zealand to some degree. Adjudicator Woodhouse explained that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered: Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.
In [City], many houses produce mould, particularly in view of the levels of humidity in this region. Such mould can usually be addressed by wiping with an appropriate cleaner. Where a property has an inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. As noted by the Tribunal in Hullia v Tran & Vu 6 the premises must be able to be used and lived in, in the normal way, without excessive mould developing. If this cannot be done, then the 5 [2022] NZTT Manukau 310605 6 [2018] NZTT Manukau 4138867 problem of mould falls on the landlord to remedy under their obligations to maintain the property.
The presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair, and the opinion of unqualified persons is often not persuasive: Repia v Walsh Trust. 7
The tenant’s evidence is that there was mould in her daughter’s bedroom which was the downstairs bedroom. This was despite her keeping the windows open every day. Her daughter became sick and took time off school. The landlord was informed (emails on 9 May 2022, and a text on 15 September 2022).
In response the landlord states that no mould was identified in the routine inspections, which were conducted every three months. They were unable to locate any emails about issues with mould. Furthermore, a cover was made for the downstairs bathroom window.
In this case, the photographic evidence produced by the tenant is limited, and there is no medical evidence to support the claim that the tenant’s daughter’s illness was caused by mould from the premises. I acknowledge that the photograph of the ceiling outside the bathroom shows mould. It is also evident that the tenant emailed the landlord about the issue of mould. However, as the cases referred to above have observed, the presence of mould, in itself, is insufficient to establish a breach on the part of the landlord. Overall, I find that the tenant has been unable to establish, with sufficient evidence, that there were defects in the premises which have caused the mould to develop. Therefore, this claim is dismissed. Electrical issues
The tenant was concerned about the safety of the electrical wiring in the roof, with reference to the installation of the bathroom fan. The tenant wished to view the electrical certificate of compliance. She also contacted Worksafe about her concerns.
The landlord has produced evidence to show that the electrical work was checked by a qualified electrician, and that Worksafe was satisfied that electrical installation did not appear to be unsafe. The email from [The electrician], indicates that the bathroom fan was safely connected. He was also satisfied that the heat pump was connected safely. Furthermore, there is the certificate of compliance completed by [The electrician] in relation to other electrical work. 7 DC Waitakere, CIV-2011-090-00056, 27 April 2011
Overall, I find the tenant has been unable to show that the landlord has breached its obligations in terms of the electrical issues identified in her application. Therefore, this claim is dismissed. Condition of the premises at the start of the tenancy
The tenant claims the premises was not reasonably clean at the start of the tenancy. The landlord accepts that some further cleaning was required. The tenant considers compensation of $600.00 to be reasonable, whereas the landlord, accepting some further cleaning should have been done, regards $300.00 to be reasonable.
Having viewed the tenant’s photographic evidence, her oral evidence that she spent 12 hours cleaning, I consider $500.00 to be reasonable compensation for the additional cleaning the tenant had to do because the premises was not given to her in a reasonably clean and tidy condition at the start of the tenancy. This sum is awarded above. Pool
The tenant states that the landlord was required to maintain the pool and have a functioning pool cover. There was no functioning pool cover, and they were unable to use the pool as often as they wanted, and for four months, it was not completely useable. The tenant says that for five days after the pool maintenance was completed by [Pool maintenance company], they could use the pool, but afterwards, they could not. The tenant’s evidence includes photographs and her emails and texts to the landlord.
Under the tenancy agreement it is noted that there is a cold water pool, which was to be maintained by the landlord. It was also recorded that the pool had a functioning cover.
The tenant’s evidence shows there were problems with the pool cover, and I acknowledge her difficulties operating the pool cover reel. While the lack of a functioning pool cover would not make the pool unusable, the agreement does state that the pool cover was to be functional, and this appears not to have been addressed.
In terms of the pool maintenance, on the whole, I accept the landlord undertook the pool maintenance once a month. The landlord has produced invoices to show there was regular attendance by [Pool maintenance company]. The tenant also acknowledges being reimbursed by the landlord for her costs when she had to do additional pool cleaning.
However, there were issues raised by the tenant concerning the colour of the water, and this issue arose despite the monthly pool maintenance, indicating more frequent pool maintenance was required. In this case, the tenant’s emails show this issue occurred on multiple occasions over a four month period.
Accordingly, the tenant ought to be compensated for the loss of amenity arising from the issues with the quality of the pool water during this four month period, and for the problems with the pool cover reel. I consider $200.00 to be fair compensation to the tenant, and this amount is awarded above. Insurance information
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) of the RTA.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A of the RTA.
In this case, the tenancy agreement records the insurance details, including the insurance company, policy number and the excess amount of $700.00. While the landlord did eventually provide a copy of the insurance policy to the tenant, there were delays in it being provided. The tenant requested the insurance policy on 11 December 2022. It was only provided on 9 May 2023, 5 months later, which is not a reasonable timeframe. I accept that the landlord was having difficulties getting this information from the owner and that once it became available, provided it promptly. Overall, the required intent has not been established for the awarding of exemplary damages. However, the tenant is to be compensated, in the amount of $50.00 for this breach. Filing fee
The tenant has been partly successful with the claim, and in this case, it is appropriate that the landlord pay the tenant’s filing fee. Name suppression
An application for suppression has been made in this case by both parties. The Tribunal, having had regard to the interests of the parties and to the public interest, and noting that some claims being established, while others have not, orders suppression of the Tenant/Landlord name and identifying details.

Tenancy Tribunal case 4844409 — 14-day notice

Tenancy Tribunal case 4844409 — 14-day notice

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their repair and maintenance obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their repair and maintenance obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions