What was Tenancy Tribunal case 4849526 about?

The tribunal order states: The tenant’s applications alleging breach of maintenance and Healthy Homes

How much money was awarded in case 4849526?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849526?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4849526?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10570263-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4849526 about?

The tribunal order states: The tenant’s applications alleging breach of maintenance and Healthy Homes

How much money was awarded in case 4849526?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849526?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4849526?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10570263-Tribunal_Order_Redacted.pdf.

2 Wye Street, Frankton, Hamilton 3204 Tenancy Tribunal Case 4849526 — Mould & damp

Order

The tenant’s applications alleging breach of maintenance and Healthy Homes Standards are dismissed.

Reasons

[The landlord/s] and Vicki Smith (with her adult daughter, who also lives at the premises) attended the hearing on 14 May 2024. I directed the landlord to provide additional evidence and heard from both parties in a short telephone hearing on 8 July 2024.
Some of the issues were resolved by agreement at the first hearing and I recorded those orders by consent on 14 May 2024.
The tenancy has now ended, and the bond ($1,700.00) has been refunded to the tenant in full.
This order decides the remaining relevant application which is the tenant’s claim for compensation for sub-standard maintenance over the 5-year tenancy and a claim that the landlord’s notice to terminate the tenancy was retaliatory. The practical arrangements for ending the tenancy were agreed at the first hearing.
The landlord’s application for a top-up of the bond is no longer required. Background
This tenancy started in December 2018 so has been in place for over 5 years.
This is an old house: 105 years old. The landlord and his family lived in it for 5 or 6 years before renting it out. [The landlord/s] said it was cold and they installed insulation in the ceiling, floor and walls, and a DVS ventilation system.
The tenant says it was still cold while she was living there. She says there are gaps around the wooden window frames, limited heating, and the oven was dysfunctional for a year. She feels the landlord has been unreasonably reluctant to address these things properly.
The landlord wants to sell the house and to put the rent up. When the tenant found this out, it was the final straw. She seeks compensation for the maintenance issues which she says increased the cost of living in the house for the past 5 years.
Ms Smith also wants the Tribunal to assess whether the landlord has been retaliatory in giving her written notice to terminate the tenancy.
The landlord has found the tenant difficult to deal with. He says he has done what he reasonably can with maintenance. In his view, the rent is fair and recognises the type of house it is. He seeks top-up of the bond to match the increased rent and for the tenant to contribute to weeding costs so that the house can be marketed favourably.
I contacted the Bond Centre after the first hearing and discovered that only part of the bond had been lodged ($1,100.00). The landlord lodged the additional $600.00 once notified by the Tribunal. There is a legal requirement that all bond money is lodged within 23 working days of being paid. This applies to part payments of bond as well as to full payments. To fail to do so is an unlawful act and can attract a fine of up to $1,500.00; see section 19 and Schedule 1A Residential Tenancies Act 1986 (RTA).
The tenant was not aware of this either so did not raise this as a breach. This means that I cannot fine the landlord as part of this decision. Was the landlord’s notice to terminate the tenancy retaliatory?
On 5 April 2024, the landlord gave the tenant a notice to end the tenancy on 7 July 2024. The notice was given the day after the tenant lodged her application to the Tribunal. The tenant feels the notice was retaliatory.
The parties agreed at the first hearing to extend the end date for the tenancy for a further 90 days (to 14 August 2024), or an earlier date if the tenant found a new home. This resolved the issue practically however it is still relevant to assess whether the landlord’s notice was retaliatory.
The landlord notified the tenant in a phone call in January 2024 that he was putting the house on the market for sale. The tenant found out that he should have done this in writing and asked him to do so, which he did on 3 February 2024. The requirement to notify a tenant in writing that tenancy premises are on the market for sale is contained in section 47 RTA and to fail to do so is a breach for which a landlord can be fined up to $1,800.00. I would not have fined the landlord even if the tenant had applied for this because he had notified her verbally so there was no detriment to her.
There was some friction between the tenant and the real estate agent engaged to arrange open homes and viewings. The law gives a landlord the right to arrange access for this purpose and a tenant cannot unreasonably refuse or be unreasonable about any conditions for times for access; s48(3A) RTA. To do so, is an unlawful act for which a tenant can be fined up to $1,500.00.
The landlord said that the friction between the parties continued to grow and when the tenant filed her application to the Tribunal (on 4 April 2024), he decided that it would be even more difficult to arrange open homes and viewings as the dispute had escalated. He also said that there had not been a lot of buyer interest so he wanted to do more work on the house and thought it might help to attract a sale if the premises were vacant.
For a termination notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
A notice is not retaliatory if it is given for a genuine reason and is not in response to a tenant’s lawful and reasonable complaints or actions. If a landlord issues a termination notice soon after a tenant has taken a legitimate action, this raises an inference that the notice is in response to that.
In this case, the landlord had been trying to sell the premises before the tenant applied to the Tribunal. He tried to do so while maintaining the tenancy, but this proved too difficult both for reasons of access for viewings and the market and nature of the property. I am satisfied that the notice of termination was not retaliatory. Did the landlord fail to comply with maintenance and/or Healthy Homes Standards obligations?
The focus of Ms Smith’s application is frustration at what she sees as the landlord’s failure to properly address her maintenance concerns.
The issues she has raised are:- a. That the oven was dysfunctional for about 12 months at the start of the tenancy and food was ruined, b. There have been gaps around windows and doors including perished putty, and problems with windows not opening and closing properly, and these have not been remedied adequately, c. That the heating in the house is inadequate to keep the house warm and the gaps in the windows mean it was too hard to heat the bedrooms.
A landlord has legal maintenance and compliance obligations including to:- a. 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; b. comply with the Healthy Homes Standards (including insulation requirements) within 90 days of any new, or renewed, tenancy that commences on a date between 1 July 2021 and 27 August 2022 or within 120 days if the tenancy commences after 27 August 2022, 1 c. comply with any relevant enactment in relation to buildings, health and safety.
All the above obligations apply even if a tenant knows the state of the premises at the time that the tenancy is entered into. See s45 RTA.
Breaching any of these 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.
A landlord should be given a reasonable opportunity to remedy a maintenance issue or defect before being held to be in breach of its duty.
The Healthy Homes Standards (HHS) are a set of specific rules for heating in the main living area, ceiling and underfloor insulation, ventilation from windows and bathroom and kitchen extractor fans, draught stopping, an efficient drainage system and a moisture prevention barrier under the house.
The premises were not required to comply with the HHS during this tenancy because it started before 1 July 2021. However, the landlord chose to comply earlier and supplied a Healthy Homes statement of compliance to the tenant 1 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019. dated 27 April 2022. The tenant says that the landlord has made a false statement in this by ticking that the house is free from unreasonable draughts.
The law requires that all tenancies, even before the HHS come into effect, must be reasonably well maintained, and have heating provided in the main living area. 2
Ms Smith provided some evidence of her communication with the landlord including a 14-day notice dated 24 April 2023, notifying the landlord of breaches and asking for the following remedies:- a. Cleaning, treating, and slip proofing back porch, b. Fixing windows in all bedrooms, c. Pest control.
After assessing the evidence, my decisions on the issues raised are:- a. There is insufficient evidence to show the oven was dysfunctional for an unreasonable period after the landlord was made aware of a problem. The tenant did not provide any evidence of communication with the landlord. The landlord supplied an invoice for repairs on 27 March 2020 and an electrician’s call-out in February 2021 which concluded there was no fault. This claim is dismissed. b. That it is not proven that the landlord failed to maintain the windows and doors in a reasonable state of repair considering the age and character of this over 100-year-old house. I agree that the tenant’s photographs show that some of the wooden-framed windows and doors are in only average condition. Paint has worn off and some of the putty is old and cracked. At least two windows or sills are partly unpainted and show signs of water damage and other photos show beads of water on the inside of the windows in places. I agree that some of the windows probably need new putty and paint soon or they will continue to deteriorate. However, the presence of ongoing leaks is not proven. The landlord’s evidence is that he replaced the back door in winter 2023 after the tenant said that his repainting had not fixed leaks, he has remedied two windows which had visible gaps 3 and that if there are still other draughty gaps, he does not know about them. The tenant’s evidence did not prove that these two windows still had gaps. The other photos (with pencils in the gap to indicate the space) do not prove that the gaps are to the outside rather than simply between the frame and window. The landlord said he supplied the tenant with foam draught-seal tape so that she could attach this to any 2 Regulation 6, Housing Improvement Regulations 1947. 3 One needed a new hinge and on the other he installed a piece of wooden beading inside the frame. Some of the tenant’s photographs are from before these issues were fixed. other windows she was concerned about. I agree with the tenant that she should not have to do this work but the reason I do not find this to be a breach by the landlord is because Ms Smith did not communicate with the landlord to let him know that this solution was proving too difficult to do herself and he needed to find another solution. The landlord also said that he offered to supply and install a cellophane seal over the whole of the inside of the windows for the winter period as this is what his family had done while living in the house. I said in the hearing that I do not agree that this is a viable solution because a tenant must be able to open windows for ventilation and this is especially important when there is gas used in a house. Overall, the evidence does not show that the landlord’s actions were unreasonable or too slow. He responded to the 14-day notice in April 2023 and there is no indication the tenant made any further contact about the windows until filing her application nearly a year later. This claim is dismissed. c. Ms Smith says that the heating provided is insufficient to heat the house. The law 4 requires a landlord to provide a heater in the main living area but not anywhere else in the house. The landlord supplied a flued gas heater in the living room and there is no evidence to suggest that the stated capacity of 3.6 kilowatts did not comply. The Healthy Homes compliance statement says that the required heating capacity is 3.4 kilowatts. This means the heating is compliant. This claim is dismissed.
Ms Smith said in the hearing and in an email to the landlord that the living room gas heater had only been safety tested once during the tenancy. I make mention of this as it is an important safety issue. The landlord supplied a Gas Safety Certificate dated 15 February 2021 showing that the piped gas system had been tested for leaks at that time. A landlord is responsible for ensuring that all gas appliances are safe, 5 and it is recommended that gas fireplaces and unflued gas heaters are tested annually and other gas appliances every two years. 6 [The landlord/s] said he would have arranged for this, but the tenant insisted she did not want to use the gas heater. A landlord should have regular safety testing done regardless of what a tenant says to them. The rent increase
I mention this because it was discussed in the hearing. Ms Smith felt that it was unfair for the landlord to increase the rent when in her view the house was not reasonably well maintained. 4 The Healthy Homes Standards and the Housing Improvement Regulations (see earlier footnote). 5 Regulations 75 and 75A of the Gas (Safety and Measurement) Regulations 2010. 6 See gassafety.org.nz and Worksafe New Zealand.
The Tribunal can only review the rent charged if that is applied for and it “exceeds the market rent by a substantial amount”; see s25 RTA. Ms Smith did not specifically apply for this and did not provide evidence to allow me to make this assessment.
A landlord has the right to increase the rent every 12 months after giving at least 60 days’ written notice which the landlord did in this case. Summary
I can see both sides of this dispute. The tenant lived in an old house which she felt she was paying good rent for, and which was difficult to heat with small separate rooms and old-style windows. The landlord would face very high costs to replace the wooden windows in the house and is entitled to instead choose to take reasonable action to improve visible gaps and leaks. Filing fees and suppression of names
Neither party has been substantially successful in their applications, so I make no award for the filing fee.
The tenant’s claims have not been proven so the landlords are entitled to suppression of their names.

Tenancy Tribunal case 4849526 — Mould & damp at 2 Wye Street, Frankton, Hamilton 3204

At a glance

Tenancy Tribunal case 4849526 — Mould & damp at 2 Wye Street, Frankton, Hamilton 3204

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions