Published tribunal order
Tenancy Tribunal case 4846983 — State of repair
Decided 9 Jan 2025 · Published 9 Jan 2025 · Application 4846983
- State of repair
Party names are redacted in the official published order.
Order
- Suzanne Howard as Agent for Peter Hall must pay [the tenant] $1,516.44 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- The tenant has applied for compensation, exemplary damages, and reimbursement of the filing fee following the end of the tenancy. Background
- The tenancy commenced on 27 November 2023 and ended on 25 February 2024.
- The premise is a furnished studio apartment that is rented for $360.00 per week.
- This rent includes the use of a washing machine/dryer, that is part of the chattels provided with the studio apartment.
TENANT CLAIMS
Did the landlord breach his s45(1) of the RTA obligations to the tenant?
- Heejin Park claims that the landlord has breached his obligations under section 45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (RTA).
- Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means 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, 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.
- Under s45(1)(bb) of the RTA, the landlord is required to comply with the healthy homes standards.
- Under s45(1)(c) the landlord must also comply with any relevant enactment in relation to buildings, health and safety. This includes a requirement for the landlord to comply with s15 of the Housing Improvement Regulations 1947 (HIR) that places an obligation on a landlord to ensure the rental premise is free from dampness. 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]. 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].
- Any intentional breaches by the landlord of any of these s45(1) of the RTA obligations is an unlawful act for which the Tribunal may award a maximum amount of exemplary damages of up to $7,200.00 for all such breaches, not for each individual breach. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants or reimbursement for actual costs incurred by the tenant that should not have been borne by him/her/they.
- The tenant claims that: a. She did not have a working washing machine/dryer from 27 January 2023 to 30 March 2024, a period of 13 weeks; and b. There was a leak in the bathroom/shower that caused the carpet to become wet and to grow mushrooms and mould as it was not addressed in a reasonable timeframe and that resulted in musty smells, and she was unable to live in the studio for 3 months; and c. The landlord is in breach of the healthy homes moisture and drainage standard. Failure to maintain and breach of buildings, health, and safety obligations under any enactment so far as they apply to the premise
- The tenant claims that the landlord has breached his obligations under section 45(1)(b) and (c) of the RTA and his obligation under s15 of the Housing Improvement Regulations 1947 to keep the premise free from dampness. Leak in Bathroom and Shower
- The landlord has produced text messages that show the tenant first raised the leak with the landlord on 3 December 2023.
- The landlord arranged for a plumber to come to inspect the leak on 6 December 2023 and asked the tenant at that end of that day whether the leak had been fixed and if she needed help with drying out the carpet. The tenant delayed this visit as she was unwell, and the plumber came the following day.
- The plumber’s invoice notes “the shower mixer tap was having a constant drip. It was dripping onto the bath spout which wasn’t sealed properly against the wall and water was entering from there. I replaced the mixer cartridge. Checked. No more leaks”.
- The landlord dropped off a residential dehumidifier and small fan heater to the tenant on 10 December 2023 to help to dry out the carpet. The landlord says the tenant’s boyfriend refused the landlord access to check the carpet and instal the fan and dehumidifier, as the tenant was sleeping. The landlord proved had given the tenant notice that she was coming to install these machines on 9 December 2023. The landlord says that as she was not permitted to inspect the carpet or set the dehumidifier and fan heater up she left these items at the door and was unable to assess whether any further action was required to clean or wet vac the carpet.
- After the tenant complained there was a further leak, on 20 December 2023, the landlord sent a plumber to check the mixer and spout. He stress tested the plumbing, proved there were no further leaks and told the landlord it was user error that had led to more water on the carpet. The landlord said she considered the issue to have been fixed as this was the only information she had to go on.
- On 23 December 2023, the tenant again complained that leak continued and sent photographs of the mould, mushrooms and water continuing to run into the carpet. The landlord says she thought this was remnants of the prior leak as she believed the leak had been fixed. Further, she says the tenant was turning the dehumidifier off at night and putting newspaper on the damp carpet, so she was not taking reasonable steps to dry the carpet out. The landlord sent the tenant some information on how to use some homemade treatments to kill the mould and mushrooms. The landlord confirmed she had found these treatments online.
- The tenant says she kept the dehumidifier on and went to her boyfriend’s house to sleep as the machine was so noisy. But each time she returned to her home to shower she found the leaks continued. She says she followed this up with the landlord by text during January 2024.
- On 12 January 2024, the landlord says she checked with the tenant and found the leak continued. She says that she had no further texts from the tenant about the issues until after 23 December 2023.
- On 14 January 2024, the landlord sent a text message requesting to come to inspect the leak on 16 January 2024 and went on 16 January 2024 despite the tenant trying to delay the visit as the tenant wanted to be there and was at work on the suggested date and time. The inspection was carried out on 16 January 2024 and found the carpet was quite dry except in the corners of the wardrobe and the landlord told the tenant to leave the set up as she had left it with the doors closed around the dehumidifier. The tenant says the landlord had told her not to use the shower for a while, and that was why the carpet had dried out. The tenant says the water came out on to the carpet a few days after the shower was used, so she didn’t know immediately that the problem was not to be resolved.
- On 9 February 2024 the plumber came again, as the tenant continued to report an issue with leaking. At this time the contractor found the grouting was no longer waterproof and was causing water to go through into the bedroom and wardrobe carpet.
- The grouting was fixed after the tenancy ended. The analysis was done by the contractors on 29 February 2024 and was fixed straight after that.
- The landlord says that had the tenant used the dehumidifier 24/7 during this time it should have been enough to dry out the amount of water coming from the grouting on the splash back once or twice a day. I do not agree. The pictures the tenant has produced in evidence show a significant amount of water flowing through the grouting onto the carpet in the wardrobe and bedroom. That amount of water would have seeped into the underlay as it was never sucked out of the carpet and while the top of the carpet may have appeared dry, it is more likely than not the underlay remined damp and mouldy.
- The landlord also stated that the next tenants had issues with mushrooms growing out of the wall and white mould and she told them to use distilled white vinegar and after that they have had no further issues. This proves to me that there was residual dampness in the wall and flooring and that the acidic treatment may have stopped the mould and mushrooms growing, but there has never been any investigation into whether the wall boards are still damp internally and whether the underlay is still wet. No moisture testing has been done to assess this type of potential ongoing damage.
- The landlord confirmed the tenant received a power bill reduction during the 3 months she used the dehumidifier and fan. She was charged $63.00 for the 3 months. Other tenants were using $40 a month in the studio apartments’ and she was charged $20.00 per month. They considered this was sufficient compensation for the loss of amenity, inconvenience and stress caused by not having the washing machine and living with the dehumidifier and fan going 24/7.
- Based on the evidence presented to me by both parties, I find the landlord has breached its s45(1)(b) and (c) of the RTA obligations as well as its s7(2)(b) of the HIR. I am not satisfied that the tenant has proved on the balance of probabilities that these breaches were intentional. The landlord took reasonable steps to address the leak and it was outside of the landlord’s control that the leak took so long to identify and remedy.
- I find the tenant should have received a rent rebate for the period 3 December 2023 to 25 February 2024, being 12 weeks she had partial loss of amenity of the shower facility that she had reasonably expected to be able to use during her tenancy, and the stress and inconvenience caused by the ongoing leaks and having to keep following the issue up with the landlord when it was not resolved. I find it fair and reasonable for the tenant to receive a rent rebate of $80.00 per week for the period 3 December 2023 to 25 February 2024.80 x 12 weeks =$960.00 rent rebate ordered. Washing machine not working
- The tenant has provided evidence that the washing machine in the apartment was not working when the tenancy commenced.
- The tenant texted the landlord about the washing machine not working about 1 to 2 weeks after the tenancy started.
- The landlord provided a text message that shows the tenant first raised this issue on 21 December 2023, just before Christmas.
- The tenant says the landlord came to visit a few times about the leak and the washing machine but did not have the washing machine fixed for 13 weeks.
- The landlord says the tenant raised the issue about the washing machine just before Christmas. She says she sent a contractor on 28 February 2024, just after the tenant left the tenancy, and he found a dual power point behind the machine and when he plugged the washing machine into the other power point it was working. The fault is noted on the invoice that there was no voltage from the power point the machine was plugged into and that has been changed post the end of the tenancy. Further, she says the contractor was contacted a week prior to him coming to look at the machine but could not be sure as she had not brought the email with her.
- The landlord says she had asked the tenant to provide her with her laundromat costs, to reimburse the tenant for these, but has not been provided.
- The tenant says the landlord never asked for these costs until mediation and not when the costs were being incurred. The tenant has produced a text message in her evidence that proves the landlord offered to pay her expenses on 14 January 2024.
- The tenant says she went to the laundromat twice a week for 13 weeks and seeks $700.00 compensation for this cost she incurred.
- The tenant has given evidence she did not inform the landlord of the washing machine not working until 1 to 2 weeks after the tenancy started. Therefore, the landlord did not address the issue for 10 weeks and 6 days. The tenant says she went to the laundromat twice per week at $16 per time. I order compensation of $347.43 to cover this cost.
- Based on the evidence presented to me by both parties, I find the landlord has breached its s45(1)(b) of the RTA obligations.
- I find the tenant should have also received a rent rebate for the period 21 December 2023 to 25 February 2024, being 9 weeks and 3 days she had loss of amenity of the washing machine and dryer that she had reasonably expected to be able to use during her tenancy and the stress and inconvenience caused by the length of time it took the landlord to resolve the issue and her having to make trips to the laundry mat. I find it fair and reasonable for the tenant to receive a rent rebate of $20.00 per week for the period 3 December 2023 to 25 February 2024. 20 x 9 weeks =$180.00 and 20/7 x 3 =$8.57. $180.00 plus $8.57= $188.57 rent rebate ordered.
- I am not satisfied that the tenant has proved on the balance of probabilities that this breach was intentional. The landlord took reasonable steps have the washer/dryer looked at by a tradesperson, but it was over the Christmas New year period where it is hard to get contractors and it was outside of the landlord’s control that the electrician took so long come to investigate and remedy the issue. Healthy Homes Standards Compliance
- The tenant claims the landlord has breached its obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider 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 tenancy agreement commenced on 27 November 2023. As such, the landlord was required to comply with all the healthy homes’ standards from the 120th day after the tenancy commenced, being 26 March 2024.
- The landlord proved it commissioned a healthy homes assessment report in July 2021. This report proves the premise complied with the following healthy homes standards at the start of the tenancy. This information was used to complete the healthy homes statements in the tenancy agreement. Moisture ingress and drainage standard
- The tenant claims that the has failed to comply with the HHS moisture ingress and drainage standard.
- The moisture ingress and drainage standard require 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 landlord has provided evidence that the house passed a healthy homes assessment in July 2021 and was healthy homes compliant when the tenancy commenced.
- The tenant’s claim is dismissed for lack of proof to substantiate her claim. Exemplary damages
- The landlord has committed 2 breaches of s45(1) of the RTA and 1 of the HIR. I have found that on the balance of probabilities these issues breaches were not intentional and were remedied as soon as reasonably practicable in all the circumstances.
- The tenant’s claim for exemplary damaged is dismissed for lack of evidence proving the breaches were intentional. Reimbursement of filing fee
- Because [the applicant] has substantially succeeded with her claims I must reimburse the filing fee. Name suppression
- The tenant has applied for non-publication of her 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 (See s95A of the RTA).
- The tenant has substantially succeeded in these proceedings. I do not consider publication of the tenant’s name is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
- Non-publication of the tenant’s name and identifying details are ordered.