What was Tenancy Tribunal case 4847580 about?

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

How much money was awarded in case 4847580?

Property Damage: $1,800.00 awarded to tenant; Rent Arrears: $4,211.43 awarded to landlord; Water Rates: $162.98 awarded to landlord

What type of tenancy dispute was case 4847580?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4847580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256747-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4847580 about?

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

How much money was awarded in case 4847580?

Property Damage: $1,800.00 awarded to tenant; Rent Arrears: $4,211.43 awarded to landlord; Water Rates: $162.98 awarded to landlord

What type of tenancy dispute was case 4847580?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4847580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256747-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4847580 — Rent arrears

Claims and awards in Tenancy Tribunal application 4847580 — net $2,574.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$4,211.43		Rent arrears
Water rates	$162.98		Water rates
Exemplary damages: s45(1)(b) Failure to Maintain		$1,800.00	s45(1)(b) Failure to Maintain
Total award	$4,374.41	$1,800.00
Net award	$2,574.41
Bond	$2,680.00
Total payable by Tenant to Landlord	$2,574.41

Claims and awards in Tenancy Tribunal application 4847580 — net $2,574.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$4,211.43		Rent arrears
Water rates	$162.98		Water rates
Exemplary damages: s45(1)(b) Failure to Maintain		$1,800.00	s45(1)(b) Failure to Maintain
Total award	$4,374.41	$1,800.00
Net award	$2,574.41
Bond	$2,680.00
Total payable by Tenant to Landlord	$2,574.41

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
The Bond Centre is to pay the bond of $2,680.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $2,574.41 [The tenant/s]: $105.59

Reasons

Both parties attended the hearing held on the 11 December 2024.
The tenancy began on the 21 December 2023. The tenant claims that there were several problems with the property which she notified the landlord of immediately. The tenant claims that the landlord was not responsive to her complaints, and as a result the tenant filed an application to the Tribunal on the 1 April 2024, requiring the landlord to fix several items at the property, comply with the Healthy Homes Standards, and provide smoke alarms. The tenant also sought compensation for the items that she had fixed, after the landlord did not do so. The tenant also sought termination of the tenancy and exemplary damages.
Since filing the application, the tenancy has ended by agreement on the 20 April 2024. The tenant has rented another property managed by the landlord.
On the 27 May 2024 I made an order at the request of the parties referring the matter to mediation. The parties attended the mediation but were unable to reach a decision, therefore the matter has come back to me to be heard. The claims to be determined.
The landlord has filed a claim seeking rent arrears of $4211.43. The tenant accepts that she owes some rent but is not sure how much is owed. At the hearing on the 11 December the landlord also added the following claims to be heard: • A claim of $5200 which the amount of money the property manager says he has lost over two years. The property manager says that he has lost a valuable client (being the owner of the property) as a result of the tenant’s complaints and he asks the Tribunal to make an award against the tenant for the amount of property management income lost. • Water rates of $162.98. • The cost of replacement curtains in 3 bedrooms and lounge $980.00 • The repairs to lounge windows of $320.00 • The cost of repairs to lounge walls and repaint of $510.00.
As the tenancy has now ended the tenant now seeks compensation and exemplary damages. The claims that she has made are: • Breach of s 45(1)(a) – landlord failed to provide the property in a reasonably clean and tidy condition. • Breach of s45(1)(b)- landlord failed to provide or maintain to a reasonable standard, taking into account the age and character of the home, in particular: ▪ Leaking sealant in the shower ▪ Curtains mouldy and dirty. ▪ Pipes leaking underneath the bench causing a bad smell, vermin, and damaging tenant’s belongings. ▪ 2 x windows that don’t close. ▪ 3x windows that do not sit in frames. ▪ No key to the hallway door that connects garage to house. ▪ Internal door does not lock. ▪ Gate connecting front and back yard does not close properly. ▪ Front doorsteps old and breaking. ▪ Front door doesn’t sit in frame leaving a gap. ▪ Kitchen cupboards swollen and mouldy. ▪ Stove did not work from beginning of tenancy to 20 March 2024. ▪ Toilet seat broken. ▪ Washing line broken ▪ Sink and tub in washhouse old and falling apart. • Breach of s45 (1) (bb) the landlord failed to comply with the Healthy Homes standards. ▪ Ventilation standard kitchen and bathroom fans not present or do not work. ▪ Draught standards ▪ Mould in house and leaks. • Breach of s 45 – the landlord failed to install smoke alarms at the property. ▪ Tenant complained immediately that there were no smoke alarms in property The burden of proof.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

What is the rent owed?

I am satisfied that the rent that is owed is $4,211.43 because that is evidenced in the rent ledger given by the landlord.

Is there water arrears owed?

I am satisfied that the tenant owes $162.00 for water rates. Did the landlord fail to provide the property in a reasonably clean and tidy condition?
A landlord must provide the property in a reasonably clean and tidy condition.
Reasonably clean means clean to the standard an average, reasonable bystander would consider reasonable 1 , not commercially clean 2 , spotless hotel or motel standard. 3
What is reasonably clean, and tidy is an “objective assessment to be made after consideration of tall of the evidence” Ace Property Management Ltd v Owens DC Wellington CIV -2008-085-1441,17 December 2008.
I am satisfied that on the evidence provided, that the landlord provided the property reasonably clean and tidy. I say this because the inspection report and photographs were comprehensive and show a property that is reasonably clean and tidy, the tenant acknowledged that all surfaces had been wiped.
Whilst there may have been some areas that were not reasonably clean, objectively the property was reasonably clean.
I also note that the tenant would have required the house to be very clean due to her immunocompromised grandchild, but there was no obligation on the landlord to provide it to a higher standard even when the landlord knew of the tenant’s grandchild’s medical condition. Did the landlord fail to provide or maintain the property in a reasonable state of repair?
Under section 45 (1)(b), a landlord must: provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and
Shortly after the tenancy began the tenant notified the landlord that she was unhappy with some items and that she wanted the landlord to come and have a look at them.
On the 9 January only 2 weeks after moving in the tenant sent an email to the landlord complaining about: • Water leak under the bench in the kitchen. • The shower leaking and not draining. • The outside tap did not work. • The stairs were rotten and unsafe. • The seal in the main bedroom had come off the window causing it not to open and close properly. • The laundry sink was rusty. 1 Housing New Zealand v Holloway TT Auckland TT215/93, 8 February 1993 at 8. 2 Mills v Kiwi Property Care Ltd TT Hamilton 09/01418/HN, 27 July 2009. 3 Richards v Scully TT Christchurch TT2043/98, 21 July 1998. • There was an infestation of pests at the property. • The washing line was frayed and going to snap soon. • The gate lock was not working. • There were areas of the property that were “soft and mouldy”.
The tenant asked the landlord to attend to these items or to discuss them with her.
On the 19 February having heard no reply the tenant sent another letter asking for immediate action and detailing further complaints (such as the oven not working) and noting problems that had gotten worse.
Having had no reply or action in respect of these complaints from the landlord, the tenant contacted Tenancy Services at the beginning of March.
On the 8 March the property manager came to the property to do an inspection (the tenant claims that she did not get a notice of the inspection which the landlord says was generated by email from its [redacted] software). The tenant refused access for an inspection that day, but the landlord said that they would come back on the 11 March to do an inspection and bring someone else for the owner. Unfortunately, the tenant’s family suffered a tragic car accident over that weekend, as a result of which family members died, and the tenant’s mother was hospitalised in another part of the country. As a result, the inspection the 11 March could not go ahead. (The tenant acknowledges that understandably given the tragedy that her family had just endured that she forgot about the inspection. When she realised she immediately notified the landlord and let them know that she would allow an inspection at another time).
On or about the 8 March the property manager first asked the landlord to deal with the issues of the oven and to send a handyman to deal with the other issues. There is no evidence of the landlord or the property manager taking any action to deal with the tenant’s complaints between 9 January and the 8 March- a three-month period. This is despite the tenant raising some significant problems such as leaks in the kitchen and bathroom and what appears to be a considerable pest infestation.
The tenant sent a 14-day breach notice to the landlord on the 21 March 2024 and it was after that day that the landlord started attending to the items the tenant raised. Many of the items were not dealt with at all over the tenancy.
I am satisfied on the balance of probabilities that the landlord failed to provide and maintain the premises in a reasonable state of repair, in particular that the landlord failed to investigate the tenants concerns between January and March and failed to take any steps to remediate the following problems until either late March or did not remediate at all. • A leak under the kitchen sink, which the tenant said smelt foul and the smell pervaded the kitchen and the items in the kitchen. The tenant said that the leak was persistent every time the tap was used and the dirty water attracted pests. • An infestation of cockroaches- the tenant complained about bugs and cockroaches at the property and produced photographs of the cockroaches. It is clear from the evidence that there was a problem with pests at the property that were not caused by the tenant. • A large hole in the ceiling of one wardrobe. The landlord denied that the hole in the ceiling was there at the beginning of the tenancy, because it was not noted in the pre tenancy inspection photographs, but it is clearly the same hole stuffed with brown paper that was there when the first healthy homes report was done in 2020 because it is in photographs. It is concerning that such a large hole was not noted in the pre tenancy inspection report, and this causes me to have some concern about the reliability of the pre inspection report. • Window latches in lounge and bedroom that were loose and eventually came off. • Gaps in the seals around the windows in the bedroom and lounge. This was noted in the landlord’s own healthy homes update in April. The tenants daughter hit her head on the window which was either fully open or closed as it was just in the path after you exited the back of the property. • A problem with the drainage in the shower and the seal in the shower requiring silicon.
The problems were simple issues to fix, and they should have been remedied right away.
The tenant says that she felt gaslight, stressed and frustrated by the landlord’s lack of action. She said that her whanau who lived in the house became sick and she thought that it was due to her living conditions. She said that when her grandson becomes sick, because of his condition it takes a lot longer for him to get better, she said this resulted in a lot of time off work and eventually to her losing her job.
At the hearing, I heard from the owner and the owner of the property management company that managed the tenancy. The property manager who was in charge of the tenancy has now left the employment of the property management firm.
The owner was of the understanding that he had attended to matters raised by the property manager. He says that he was in hospital over this time as well. He says that when the property manager raised issues with him, he would send his maintenance people to investigate. He did not know why this had not occurred earlier.
It was my observation at the hearing that the property management company tried to minimise and trivialise the tenant’s complaints, they were quick to place blame on the tenant without any basis and were reluctant to accept responsibility for their own misgivings.
An example of this was the property management company’s claim for loss of income that the property manager says was caused by the tenant raising complaints about the problems (both at this and her new tenancy), causing the property management firm to lose two owner contracts. There was no real understanding that it was the firm’s failure to deal with maintenance items in a timely manner that lead to the complaints, rather the firm chose to believe that the tenant was being difficult.
I have found that the landlord breached s45(1)(b.) Breaching s45(1)(b) is an unlawful act to which exemplary damages a maximum of $7,200.00 can be awarded. I find they have committed an unlawful act.
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 award the tenant $2000.00 in exemplary damages for this breach, this takes into account: a. The number, nature and extent of the breaches, whilst there were a considerable number of smaller things, they were an inconvenience and annoying to live with, for instance as the shower drain was not working property and neither was the shower sealed the tenant has to lay down towels on the floor every time she had a shower. She then had to launder those towels. The tenant also complained of mould in the bathroom. b. The leak in the kitchen was smelly and attracted pests. c. The house was cold and draughty from the gaps in the windows and the window latches not working. This was concerning to the tenant especially given her grandson’s health condition. d. I consider that the state of the house added to the tenant’s stress and caused anxiety from having to continually raise these issues with her landlord. e. It is in the public interest that an award is made to deter landlord’s (especially those who use professional property managers) from failing to address problems in a timely manner. There was a sick young child living at the property and those issues should have been dealt with as they arose. f. I have taken account that the landlord released the tenant from her tenancy and when the owner became aware of the issues that he dealt with them quickly. I also note that the owner has subsequently addressed the issues.

Did the landlord fail to comply with Healthy Homes Standards?

As the tenancy commenced on the 21 December 2023 the landlord had 120 days to have the property compliant with Healthy Homes Standards. This meant that the house was required to be compliant by 19 April 2024. The tenant moved out on the 20 April 2024. Therefore, any breach was only a breach of one day.
The landlord had the house assessed for Healthy Homes compliance in 2020. It failed on a number of standards, but the landlord had most of those issues remedied (apart from the hole in the ceiling of the wardrobe). After the tenant issued a 14 day notice for non-compliance of the Healthy Homes Standards on the 21 March the landlord had the house reassessed. The home only failed one standard and that was the draught standard, because of the lack of seals in the main bedroom and the broken window latches. The items that the tenant had complained about.
The healthy homes assessor found that the bathroom fan needed cleaning to make it more effective, but it passed the standard.
The tenants claim for failure to breach the ventilation standard is not proven and is therefore dismissed.
The courts have determined that when an issue is both a failure to maintain and a failure to comply with the Healthy Homes Standards (or a breach of another section of the RTA), then the tribunal should only censure the party once. Manage My Rental v Baxter [2015] NZDC 12011. As I have censured the landlord for the leaks, and broken seals and latches under a failure to maintain, I cannot censure the landlord again for a failure to meet its obligations under the Healthy Homes Standards. I also would not award any exemplary damages for any breach under this section, as the technical noncompliance was only one day and the landlord provided a remedy by allowing the tenant to leave her tenancy early.

Did the landlord fail to install compliant smoke alarms?

The tenant says that there were no smoke alarms at the property. The landlord provided me with the pre tenancy inspection report. Given the large hole that was missed in the wardrobe I have some concerns as to the reliability of the report. However, the report does note that there is one smoke alarm installed and there are photographs of the smoke alarm. The tenant did not raise the missing smoke alarm in her first letter of 9 January and consider it more than likely that if the smoke alarm was missing at that stage, it would have been raised by the tenant. Therefore, I am not satisfied that the landlord has failed to provide a working smoke alarm. The tenant’s claim is dismissed. The landlord’s claims. The landlord’s claim for loss of revenue.
The property manager was seeking $5200 for the loss of business. I dismiss this claim for the following reasons: a. The tenants’ claims were meritorious. The property manager failed to provide the property in a reasonable condition. There were a number of issues with the property which the landlord failed to address. b. If the property manager lost the business of the property owner, it was more than likely due to the mismanagement of the property rather than the tenant’s actions. c. As mentioned above this claim shows a complete lack of insight by the property management company into their own behaviour and management of the property. The landlord’s claim for curtains and damage to the property.
The landlord claims for compensation for these items are also dismissed for the following reasons. a. The curtains were old and had pest dirt and larvae on them. The tenant complained about that to the landlord in her correspondence and text messages and told the landlord she was getting her own curtains. At the end of the tenancy the tenant left some of the original curtains (that she says were okay) in the cupboard. The claimed amount is for new curtains. I consider that the landlord would have needed to replace all of curtains at the end of the tenancy not from anything the tenant did, but from age and wear. b. I could not place any reliability on the landlord’s final inspection reports. The tenant produced two reports both dated 1 May 2024, that the landlord had given her that were purported to be the final inspection reports. The reports were different some showing damage that was not noticed in the first report given to the tenant. The tenant only received the second report once the landlord had made a claim for damages. I am satisfied that it is more than likely that the landlord changed the inspection report to assist their claims because the reports are the same date but are different. I cannot place any weight on the information on those reports as I do not know what was added in at what time. c. The landlord’s claims for damage to walls and the windows are not proven. Name suppression and filing fee.
As both parties have been somewhat successful, I grant both name suppression, and do not award the filing fee to either.

Tenancy Tribunal case 4847580 — Rent arrears

At a glance

Tenancy Tribunal case 4847580 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What is the rent owed?

Is there water arrears owed?

Did the landlord fail to comply with Healthy Homes Standards?

Did the landlord fail to install compliant smoke alarms?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What is the rent owed?

Is there water arrears owed?

Did the landlord fail to comply with Healthy Homes Standards?

Did the landlord fail to install compliant smoke alarms?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions