What was Tenancy Tribunal case 4855521 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,736.03 immediately, calculated as

How much money was awarded in case 4855521?

Compensation: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Lightbulbs: $26.10 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $300.00 awarded to landlord; Rent Abatement: No Water To Premises: $101.15 awarded to tenant; Rent Arrears: $754.29 awarded to landlord; Water Rates: $34.73 awarded to landlord

What type of tenancy dispute was case 4855521?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4855521?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10658541-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4855521 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,736.03 immediately, calculated as

How much money was awarded in case 4855521?

Compensation: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Lightbulbs: $26.10 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $300.00 awarded to landlord; Rent Abatement: No Water To Premises: $101.15 awarded to tenant; Rent Arrears: $754.29 awarded to landlord; Water Rates: $34.73 awarded to landlord

What type of tenancy dispute was case 4855521?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4855521?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10658541-Tribunal_Order_Redacted.pdf.

28 Glenvar Road, Torbay, Auckland 0630 Tenancy Tribunal Case 4855521 — Exemplary damages

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Reasons

Claims and awards in Tenancy Tribunal application 4855521 — net $2,736.03 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$754.29		Rent arrears
Wall repairs	$500.00		Wall repairs
Repair wardrobe door	$250.00		Repair wardrobe door
Blind replacement	$300.00		Blind replacement
Light bulb replacements	$26.10		Light bulb replacements
Water rates	$34.73		Water rates
Compensation ceiling collapse		$1,500.00	Compensation ceiling collapse
Compensation: property damage		$1,000.00	property damage
Rent abatement: no water to premises		$101.15	Rent abatement: no water to premises
Exemplary damages: Failure to repair		$2,000.00	Failure to repair
Total award	$1,865.12	$4,601.15
Net award		$2,736.03
Bond		$2,840.00
Total payable by Landlord to Tenant		$2,736.03

The tenants were represented at the hearing by [one of the tenants]. The landlord was represented by its property manager. The Claims

The tenants primarily claim compensation and exemplary damages for the consequences of two flooding events at the property and for the landlord’s response to those events.

The first flooding event occurred on 9 May 2023 when stormwater flooded the premises.

The second event occurred on 13 August 2023 when a water pipe in the ceiling cavity, chewed by rats, leaked into the roof space causing the ceiling in one of the rooms to collapse.

On 10 October 2023, the tenants gave notice of termination, effective 7 November 2023.

The landlord applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The landlord claims that $754.29 is owed by the tenants to and including 10 November 2023. The rent summary makes allowance for three weeks’ abatement of the whole of the rent from 24 May 2023 to 13 June 2023. It makes allowance for a further rent abatement of $150.00 per week from 16 August 2023 to 24 October 2023.

As noted, the tenant gave notice that the tenancy would end on 7 November 2023.

The communications put in evidence by the landlord, satisfy me that the tenant was unable to vacate the premises until 10 November 2023.

In terms of s. 60 RTA, “where a tenant remains in occupation of premises after the tenancy has terminated all the obligations of the tenant shall continue in force as if the tenancy were subsisting until such time as the tenant ceases to occupy the premises.”

I find that the tenants’ rent obligations continued through to 10 November 2023.

On that basis, I find it proved that with the abatements allowed for by the landlord, a further $754.29 in rent is owed to the end of the tenancy.

The tenants’ claims for further rent abatements/ compensation are addressed separately below.

The landlord’s ledger and Watercare invoice provided, show that water rates of $34.73 were owed at the end of the tenancy.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs. Light Bulbs

The tenants do not dispute that they should meet the meet the cost of replacing standard light bulbs.

The invoice provided by the landlord shows that 3 standard light bulbs were replaced at a cost of $8.70 each.

I do not find it proved that the tenants are responsible for the cost of replacing an outdoor light at a cost of $90.85. Nor do I find it proved that the tenants should meet the cost of having an electrician attend the property to install the light bulbs at a cost of $130.45. In terms of s.49 RTA, parties have a responsibility to take all reasonable steps to mitigate the costs of a breach by the other party. Installation of standard light bulbs does not require an electrician’s expertise. Carpet Cleaning

The landlord claims that the tenants should reimburse it for the costs of having the carpets commercially cleaned, on the basis that the agreement requires the tenants to do so.

Section 40(1)(e) 18 requires a tenant to leave the premises in a reasonably clean and tidy condition. Commercial cleaning of the carpets can only be required when necessary for the premises to be left in that condition.

Photographs provided by the landlord do appear to show some staining to carpets but given the extent of the flooding and the limited remediation of potential ongoing consequences, which is not the tenants responsibility, I do not find it proved that the tenants are responsible for removing those stains.

I note too that the tenants notified the property manager on 26 April 2022 that, “On the weekend we were doing a big house clean and when I moved one of the couches and tables out of the corner it looks like there's been a leak and the carpet is brown I'm not sure whether the water has come from under the window or above...”

That claim is dismissed.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenants must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA. Doors/ wall repair

The landlord claims the compensation of $1,500.00 for the replacement of a living room door, repair of a wardrobe door and repair of wall damage.

I have been provided by the landlord with what is described as a quote for that work. However it is simply a typed document that is not signed, does not identify the provider of the quote and with respect to the landlord, is of very limited evidential value.

In that document the doors are described as rimu doors. The tenants’ evidence, which appears to be supported by the photographic evidence, is that they are in fact rimu veneer hollow core doors. The cost to repair and repair one door and replace another is quoted as $1,200.00 dollars which seems unreasonably high.

The tenants’ evidence is that the reason for one door being missing is because after the ceiling collapsed, an affected door swelled and became unusable so another door from the premises was used to replace it.

The evidence provided showing the damage from that flood event supports that possibility. I do not find it proved that the tenants are responsible for replacing that door.

The evidence shows damage to a wardrobe door. I accept the landlord’s position that the damage was not there at the start of the tenancy and that the landlord should be compensated for the repair cost which I estimate at $250.00.

Evidence provided by the landlord also shows some damage to wall surfaces and also areas where there appear to have been attempts to hang sheets as temporary curtains and a number of nail holes have been left. The landlord should be compensated for the costs of repairing that wall damage which I estimate at $500.00. Vertical Blinds

The landlord says that the Vertical Blinds in the lounge were damaged during the tenancy and needed to be replaced. The tenants do not dispute that the blinds broke during the tenancy but say that was has a result of normal wear and tear, because of their weak construction.

The landlord has provided evidence proving the replacement cost at $805.00.

I find it proved on balance, that the damage to those blinds occurred during the tenancy and is beyond fair wear and tear. Accordingly, the obligation passes to the tenants to provide evidence to show that the damages occurred in circumstances for which they were not responsible.

In the absence of clear evidence, I find tenants should compensate the landlord for the loss caused by the damage to the vertical blinds.

In assessing that compensation, the landlord should be returned to the position it would have been in had the tenants not breached their obligations, and should not be better or worse off.

IRD depreciation tables give blinds in residential tenancies a depreciable life of 8 years. These blinds or of a particularly fragile nature and were nearly 5 years old by the end of the tenancy. Compensation is assessed taking those factors into consideration. Lawns

The landlord has provided photographs which show the lawns at the premises overgrown at the end of the tenancy. The tenants say that it was impossible to mow those lawns because the inadequacy of the drainage meant that the ground could never get sufficiently dry to mow them.

While it does appear that the tenants did not leave the lawns and some garden areas reasonably tidy at the end of the tenancy, the landlord has not provided evidence of a resulting loss, to form a basis for an award of compensation. Tenant’s claims May 2023 flooding

The tenants moved out of the premises on 9 May 2023 when the flooding was happening and were justified in doing so.

The tenant e-mailed to property manager on 31 May 2021, “Sorry for the delay in emailing you as stated in my text we've only just returned back to the house on Monday this week as the smell has been too bad and there's such of only had my mobile to e-mail from meaning I've been delayed in getting emails emails out. The rent is only short for one week as we couldn't live in the house because the carpet cleaners didn't come until the following Wednesday after the flooding- a full week after the flood. This wasn't done correctly, the carpet cleaners didn't dry the carpet before cleaning nor with humidifiers provided by the insurance company which is normal process. They just used a rug doctor which only cleaned the top layer of carpet leaving the flood water there which resulted in smell and mould for the following two weeks. We have still paid the rent for these following two weeks even though there should be waived as the property was unliveable.”

Section 59(1) RTA provides that, “Where, otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), the premises are destroyed, or are so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly...”

The tenants were out of the premises for around 3 weeks from 9 May 2023 to 30 May 2024. As noted above (para. 7), a 3 week rent abatement was allowed for by the landlord.

As well, s.45(1)(b) requires that the landlord must provide and maintain the premises in a reasonable state of repair. That includes an obligation to attend to repair of damage to the premises, whether or not caused through the landlord’s fault.

Breach of that obligation is an unlawful act for which damages of up to $7,200.00 may be awarded.

The landlord was not at fault in terms of how the damage occurred, through an unusual weather event.

The tenants claim though the landlord breached its obligation to adequately repair the premises because nothing was done for a week after the flood, allowing the water to saturate the underfloor. Then, when a contractor was sent, no steps were taken to dry the premises, leaving a risk of contamination from waste water and ongoing dampness and mould issues.

The tenants say that thereafter the premises were mouldy and unhealthy leading to loss, as one of the others sharing the property and was helping with the rent, moved out because of the conditions.

Photographs have been provided showing what the tenants say are the residues of mould on the bottoms of doors that had gotten wet, and had to be cleaned off.

I am surprised that the insurance assessors report is not available. That would generally provide helpful evidence about the extent of the damage that needed to be remediated and recommended steps for doing so. That evidence is in the landlord’s power to provide.

The evidence does suggest a surprisingly limited response to the flooding. It would seem to me necessary to ensure that any risk of contamination or of saturation of subfloors or walls would need to be remediated.

However, bearing in mind that this is the tenants’ claim to prove, on balance, I do not find it proved that a loss has been incurred to the tenants beyond that addressed by paying no rent for the period they could not occupy the premises or that that exemplary damages should be awarded against the landlord for failure to adequately respond to the need to repair the premises. August 2023 flooding 53.

Photographs have provided showing a large area of the ceiling and sodden insulation material all over the room and its contents.

The landlord contacted its insurer. The tenants say the insurance assessor came promptly and showed them where a pipe in the roof space had been chewed through by a rat. The tenants say that they had brought to the property manager’s attention concerns about rats living in the roof cavity.

The mains water supply needed to be turned off until the plumber was able to come the next day to reinstate a water supply.

The tenants’ evidence is that it was many weeks before the affected rooms were reinstated. That is corroborated by the landlord having provided a ten week rent reduction of $150.00 (see paragraph 7 above).

The rent abatement seems to have been calculated on the basis of the proportion of the affected area, which could not be used, to the whole of the premises.

In that abatement, no allowance is made for the damage caused to the tenant’s property.

Details are not provided as to the replacement cost of the tenants’ property destroyed or damaged by the flooding so the compensatory award must necessarily be conservative. An award of compensation is however appropriate.

The rent abatement does not compensate for the ongoing impact on the tenants’ use and enjoyment of the premises of living with that unrepaired damage and the noise of dehumidifiers working for lengthy periods, for the hassle of wondering and following up with the property manager about when the damage would be repaired and the frustration associated with necessary repairs to the tenants’ home being left unaddressed.

Compensation is due for that impact of the damage and its repair on the tenants’ use and enjoyment of the premises, in addition to the rent abatement provided for, which I assess at $50.00 per week for the 10 week period the abatement applied.

I find that 1 day’s rent abatement is due for the day the premises were without a water supply.

No substantive explanation is given for the landlord’s failure to complete such obviously necessary repair for such a long time.

I find that constitutes a breach of the landlord’s obligation to adequately repair the premises when required, which is an unlawful act.

Where a party has committed an unlawful act intentionally, as is the case here, the Tribunal must decide whether it is just to make an award of exemplary damages, taking into account the criteria in s.109(3) which are the intent of that party in committing the beach, the effect of the breach, the interests of the parties and the public interest.

Here the landlord’s intent is unclear. The effect on the tenant was to compound the tenant’s distrust that the landlord would be prepared to meet its obligation to keep the premises in a reasonable state of repair, that distrust having arisen from the landlord’s failure to respond to the tenants raising concerns about water ingress in 2022, inadequately responding to the flood damage in May 2023 and having to deal with the consequences of flooding caused by rat damage, which the landlord had been forewarned about.

It led to a degree of frustration such that the tenants chose to end the tenancy which, on the evidence provided, seems to me understandable.

There is a public interest in ensuring that landlords take seriously their obligation to make sure that the premises they receive rent for are kept in a reasonable state of repair and that necessary repair work is attended to with reasonable promptness.

In light of those considerations I consider an award of exemplary damages of $2,000.00 against the maximum of $7,200.00, would be just.

The evidence provided does not prove the tenants’ claim that the kitchen extractor was inadequate.

Relocation costs are likely to arise when a tenancy ends for whatever reason. While it is possible that the landlord’s beach meant that relocation costs were incurred earlier than they may have otherwise, I do not find that an award of compensation for relocation costs would be warranted, in addition to the compensation and exemplary damages already ordered.

The award of exemplary damages takes into account the effect of the landlord’s breach on the tenants, as one of the criteria under s.109(3) and no separate award is appropriate for mental distress.

As each party has had claims upheld, I make no order in respect of the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4855521 — net $2,736.03 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$754.29		Rent arrears
Wall repairs	$500.00		Wall repairs
Repair wardrobe door	$250.00		Repair wardrobe door
Blind replacement	$300.00		Blind replacement
Light bulb replacements	$26.10		Light bulb replacements
Water rates	$34.73		Water rates
Compensation ceiling collapse		$1,500.00	Compensation ceiling collapse
Compensation: property damage		$1,000.00	property damage
Rent abatement: no water to premises		$101.15	Rent abatement: no water to premises
Exemplary damages: Failure to repair		$2,000.00	Failure to repair
Total award	$1,865.12	$4,601.15
Net award		$2,736.03
Bond		$2,840.00
Total payable by Landlord to Tenant		$2,736.03