What was Tenancy Tribunal case 4863165 about?

The tribunal order states: Comprende Limited must pay [The tenant/s] $2,020.44 immediately, calculated

How much money was awarded in case 4863165?

Compensation: Failure to provide pre…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4863165?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4863165?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10788548-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4863165 about?

The tribunal order states: Comprende Limited must pay [The tenant/s] $2,020.44 immediately, calculated

How much money was awarded in case 4863165?

Compensation: Failure to provide pre…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4863165?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4863165?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10788548-Tribunal_Order_Redacted.pdf.

Unit/Flat 6I, 42 Molesworth Street, Thorndon, Wellington Tenancy Tribunal Case 4863165 — State of repair

Claims and awards in Tenancy Tribunal application 4863165 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide premises in reasonable condition/ failure to maintain	$2,000.00	Failure to provide premises in reasonable condition/ failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Claims and awards in Tenancy Tribunal application 4863165 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide premises in reasonable condition/ failure to maintain	$2,000.00	Failure to provide premises in reasonable condition/ failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

Comprende Limited must pay [The tenant/s] $2,020.44 immediately, calculated as shown in the table below.
The landlord must remove all the owner’s belongings (except a ladder) from the premises by Tuesday 10 September 2024. Should the landlord fail to comply with this work order by the due date, the landlord will pay weekly compensation of $50 to the tenants for every week or part week that the work order remains outstanding from 10 September 2024 until the date the work order is completed. Compensation may be paid by the tenants reducing their weekly rent payment accordingly.
All other claims are dismissed.

Reasons

Both parties attended the hearing with Ms Fox-Moore representing the landlord.
The tenants have filed an application for work orders, compensation, and exemplary damages. They also seek an order reducing the rent to an amount in line with market rent.

Did the landlord provide and maintain the premises in a reasonable state?

Under section 45(1)(a) and (b) of the Residential Tenancies Act 1986 (RTA), a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair. 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 RTA. Background facts/evidence
The premises are an apartment comprising of three double/king-sized bedrooms, a study, an ensuite and second separate bathroom, open plan kitchen, dining, lounge area, a covered carpark and storage locker. The apartment complex is described as high-end, prestigious, and centrally located.
The tenants viewed the apartment online, then arranged a viewing in person on 14 February 2024. The owners were living in the apartment at the time but vacated at the end of February. On 11 March, the parties entered a tenancy agreement for a fixed term commencing on 8 April 2024 and to end on 24 March 2025. Weekly rent is $1200. The tenants noted, and I accept, that they are paying a premium rental for the apartment.
On moving into the apartment, the tenants were disappointed to discover several outstanding cleaning and maintenance problems. The first items which they immediately notified the landlord about were: a. The owners left behind many belongings such as cleaning products, mops, buckets, towels, watering containers, a ladder, a stone slab, renovation materials, paint, paint equipment, wrapping paper, wallpaper, shelf parts, modems, cables, toilet brushes, carpet materials, containers of different liquids such as motor oil etc; b. The bench top in the kitchen was sticky; the rangehood filters and stove top hobs were oily, the oven was dirty, and the exterior balconies and exterior heat pump unit were covered in bird droppings, and pigeons on the balconies were causing a nuisance with droppings and noise; c. The rangehood was not working.
Shortly after this and throughout the first month or so of the tenancy, the tenants discovered several other issues as follows: the kitchen pantry light and a walk-in wardrobe light were not working; the dishwasher door was missing a spring which caused it to fall heavily; there was a kitchen sink leak; the toilet flush button in the family bathroom was not working properly and was failing to close off; the shower and sink faucets in the ensuite bathroom were not working properly and would automatically shut off when in use; the exterior fire sprinkler covers were loose and made a noise in the wind.
The tenants requested that the landlord complete further cleaning at the premises; address pest control measures to prevent pigeons on the balconies and repair the various maintenance issues. There were multiple communications with the landlords to report and resolve the issues. Some issues were dismissed by the landlord and were only fixed after the tenants persisted in complaining, which included serving two 14-day notices on the landlord on 12 and 28 April for various issues.
The tenants complain that the landlord knew about some of these issues before the tenancy started but did not advise the tenant because the landlords believe the issues were minor and/or resulted from fair wear and tear that it was not necessary to fix. For example, the pre-tenancy inspection completed by the property manager records that the kitchen pantry light did not work; the dishwasher door springs were gone; and the rangehood was not working. Ms Fox-Moore explained that she thought the rangehood not working was user error, but she did not investigate further.
The tenants summarised the impact on them as follows: a. Due to the rangehood not working, the tenants were unable to use the stovetop and had to eat meals out. This was inconvenient and disrupted their normal family routine. While the landlord suggested that they could still use the stove without a working rangehood, the tenants noted that the kitchen is situated internally without proper ventilation; b. The tenants could not use the balconies because they were covered in pigeon droppings. They were also concerned that pigeon droppings on the exterior heat pump unit would contaminate the air being pumped into the apartment. They subsequently asked the landlord to service the heat pump and clean the internal filters, which were filthy. One of the tenants and their young child developed hives during the first few weeks at the property. Once the heat pump was serviced and cleaned, their condition improved; c. Goods left behind by the owners impeded their ability to use the available storage spaces for their belongings; d. General disruption and inconvenience due to numerous visits from tradesmen to remedy issues. During the first 12 weeks of the tenancy, the tenants had 18 visits from different tradesmen to address the issues raised. This caused disruption because of the time and effort required to communicate with the property managers; coordinate visits with tradesmen and sometimes cleaning up debris after work was completed; e. General stress and frustration caused by raising and dealing with numerous issues and the dismissive responses from the property managers. The tenants say the property managers have indicated that many repairs are being done to appease the tenants rather than because they are essential. The tenants sought their own professional opinions to convince the landlord action was required (e.g. such as possible solutions to discourage pigeons.)
In summary, the tenants claim that they are paying a premium rent for an apartment that was not provided in a reasonable condition, and several issues raised were not dealt with in a reasonable time.
Ms Fox-Moore explained that she did a walk-though of the apartment with the owners before they vacated. After they left, she then conducted a pre-tenancy inspection on 5 April 2024 and prepared a report with photos (the entry inspection). The landlord’s submissions may be summarised as follows: a. The premises were reasonably clean and tidy as shown in the entry inspection. Professional cleaners had been through the premises before the tenancy started; b. While they could not get the rangehood to work at the entry inspection, it had been working at the walk-through with the owners so they assumed it was user error and would be fine. They consider that the tenant could have used the oven and stove for a short period while waiting for its repair. c. The faulty dishwasher door spring and non-working pantry light were not essential repairs because they did not prevent the tenants from using the pantry and dishwasher. However, they agreed to do them anyway to keep the tenants happy. They claim the pantry light had been disconnected so that the exposed wires were not dangerous. The wardrobe light had been working during the entry inspection; d. They complained that the tenants were reluctant to meet with the landlords as suggested to discuss and resolve issues. Several issues were first notified by a 14-day notice to remedy rather than an up-front discussion with the property managers, which they felt would’ve allowed them to address issues more effectively. e. Things break and must be repaired. That’s unavoidable. Many maintenance issues raised were addressed promptly; f. The landlord asked the tenants to advise their preferred solution to deal with the pigeons. They suggested spikes and a specific installation date because the first booked date didn’t suit them. They deny that pigeon droppings on the exterior heat pump unit would contaminate the system as it is designed to sit outside; g. Servicing of the interior heat pump was only raised at the mediation on 26 June. They agreed to do the work to appease the tenants but dispute that it was necessary, noting it is usually the tenant’s responsibility to clean heat pump filters. However, they also acknowledged that they cleaned the filters because they did not know whether it was done before the tenancy started. h. They cleaned areas as requested by the tenants and completed repairs as requested but submit that many items were not necessary; i. Maintenance of the exterior sprinklers was a Body Corporate (BC) issue. The tenants raised it on 28 April. The landlord could not say when they advised the BC, but their representatives first visit to investigate was on 29 May. It was then discovered that it was an issue for several apartments and required abseilers to do the work; j. The owners had left belongings behind such as cleaning products to help the tenants. The landlord collected some of the items but claim that they are entitled to leave some belongings there, especially items that would be useful for maintaining the apartment.
Summary of complaints and steps to remedy taken by the landlord: Cleaning/maintenance issueDate reported Landlord response/stepsDate fixed Clean oven & rangehood8 AprilDisputed that not reasonably clean but agreed to clean. 30 May Clean balcony & exterior heat pump unit 8 AprilDisputed that cleaning required but agreed to do it. 24 July Pest control (pigeons)8 AprilInitial dispute over remedy. Later agreed to install spikes suggested by tenants. 25 July Broken rangehood8 April10 April-Electrician unsure of fix. On 13 April booked a 2nd electrician to check and quote. 19 April Wardrobe light8 AprilElectrician replaced whole fixture quickly. 10 April Kitchen pantry light8 April (noted on entry report) Disputed that light was necessary but agreed to do work. 10 April-Electrician unsure of fix.16 May—2nd 23 May electrician to check and quote. Dishwasher door8 April (noted on entry report) Disputed repair was necessary but agreed to do work. Door is still on slant and tray does not slide in & out easily. 16 May Kitchen sink leak18 AprilPlumber repaired.23 April Toilet flush button28 AprilClaim of normal wear & tear. 23 May-plumber said it was broken. Had to order parts before repair could be done. 10 June Exterior sprinklers28 AprilBody Corporate issue- inspected 29 May, 7 June & several units in building fixed at some time. Abseil access required to do work. 14 July Shower/sink faucets11 MayRepaired by plumber.23 May Heat pump service26 June at mediation Landlord disputed work necessary but agreed to check service records and service if required and clean filters. 9 August Owners’ belongings8 AprilRemoved some but not all items. Not fully remedied Findings
After carefully considering all the available evidence and submissions of the parties, I find that the landlord was in breach of its duties to provide the premises in a reasonable state of cleanliness and in a reasonable state of repair. I can understand why the tenants were extremely disappointed about the condition of the premises when they are paying a premium rent. The tenants were entitled to expect that the landlord would have checked to ensure the exterior balconies were cleaned; that the rangehood, oven and stove were clean and that the items identified as not working before the tenancy started (including the rangehood, the dishwasher door and the pantry light) would be put into working order before the tenancy started. Furthermore, the landlords did not stipulate in the tenancy agreement that they could leave any belongings at the premises. These should have all been removed before the tenancy started. It is not fair to expect the tenants to keep these items stored for the owners, especially when they are paying a premium rent for the full use of the premises including all storage areas.
Generally, the time taken to remedy several matters was not reasonable and caused significant disruption for the tenants. The owners prepared a statement for the Tribunal in which they have, in my view, unfairly criticised the tenants claiming that the tenants sent them a staggering list of requests and were not acting in good faith. I consider their comments are unfounded and perhaps demonstrate an attitude of unwillingness to address matters. The tenants certainly felt that the landlord was unwilling to accept and address many of the items they raised. I can therefore understand why the tenants chose to formally document their complaints by serving 14-day notices, as is their right.
The tenants are entitled to compensation for the breaches. Compensation
The tenants prepared a compensation calculation totalling $2,273.97 up to 15 May, made up of amounts spent eating out, and a portion of the rent paid for areas they could not use when they were subject to cleaning and repairs based on the surface area (e.g. the balconies, the kitchen, bathrooms, areas used to store owners’ belongings). The bulk of the claim is $1,225.71 for eating out expenses between 8 April- 22 April. The rangehood was not fixed until 19 April and the kitchen sink leak was not fixed until 23 April. Therefore, the food expenses relate to those periods.
I consider that full reimbursement of the tenants’ food costs is not an accurate calculation of loss because had the rangehood functioned, they would incur expenses for food to cook anyway. It is therefore difficult to assess the difference between the costs they spent eating out, compared with what they would have spent on groceries to eat in.
Assessing loss of amenity of spaces based on surface area is also problematic. That is because the loss of amenity of some areas will be more important than others. For example, the loss of a 5sqm balcony would not have the same impact as the loss of a 5sqm bathroom. In other words, an unusable bathroom is more serious than an unusable balcony.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement. Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a commonsense approach is required. There are no general or absolute rules for calculating the amount of compensation, but the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $2,000 is justified. To give some guidance as to how I have reached this figure, it equates to one week’s rent of $1,200 for failing to provide the premises in a reasonable state at the start of the tenancy and a further weekly rent reduction of approximately $200 per month during the almost 4-month period (between 8 April and 9 August) during which various cleaning and maintenance issues were outstanding. However, I have made this a global award to compensate the tenant for this period, recognising that different issues were remedied at different times. Work order
In addition, I make a work order that, if they have not already done so, the landlord is to remove all the owner’s remaining belongings from the premises (except the ladder, which the tenants agree may be left) by 10 September 2024. Should the landlord fail to remove these belongings by the due date, the tenants will be entitled to further compensation by way of a weekly rent reduction of $50 for every week or part week that the belongings remain at the premises commencing from 10 September 2024 to the date the belongings are removed. Exemplary damages
The tenants claim exemplary damages from the landlord for breaching sections 45(1)(a) and (b) RTA and the Healthy Homes Standards under s45(1)(bb) RTA by failing to provide a working rangehood and a serviced and clean heat pump, all of which are unlawful acts.
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) RTA.
I am not satisfied that the breaches by the landlord were committed intentionally given the steps taken by the landlord to carry out a pre-tenancy check. They held a genuine belief that the premises were in reasonable condition and that some of the matters raised by the tenants were not necessary or a priority. This is more a difference of opinion regarding what is reasonable, than a deliberate intention not to discharge their obligations. They certainly believed the rangehood was working and while the heat pump was serviced after the tenancy started, it did operate from the start of the tenancy. I am not satisfied that there was sufficient evidence to prove that the heat pump was contaminated by bird droppings.
I am satisfied that exemplary damages are not justified, and the compensation awarded is the appropriate remedy.

Should the rent be reduced?

Under section 25(1) RTA, the Tribunal may, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent.
Section 25(3) provides that the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The first inquiry is for me to determine what is the market rent for this property, and then whether the rent charged exceeds the market rent by a substantial amount.
The tenants ask the Tribunal to consider reducing the weekly rent payable because the condition and maintenance of the premises supports a rent reduction. The premises were provided in a state considerably below what would be expected when paying such a premium rent as evidenced by the above cleaning and maintenance claims. The tenants emphasize that the cleaning and maintenance issues severely impacted their quality of life and enjoyment of the property.
The tenants also claim that the current rent significantly surpasses the upper quartile rent for a three-bedroom house in the same area. They claim that their evidence gathered from Trade Me listings and surrounding area rental comparisons indicate that they are paying substantially above market rental for properties in similar conditions. Comparable apartments (3-bedroom, 2 bathroom and 1 carpark, not furnished) in the vicinity are listed at lower rental rates. They argue that the discrepancy strongly suggests that they are paying a premium rent that does not align with the current state of repair and maintenance of the apartment.
The 11 advertisements produced in evidence were of properties mainly listed in June and July in Thorndon (2 listed in May) with rents advertised from $750 to $1,150. They are a mixture of houses and apartments. It is difficult to know how comparable the properties are in terms of the size of the bedrooms and living areas and quality of the fixtures and fittings. I note that the Kate Sheppard apartment in this case is generous in size, with high quality fixtures and fittings. Furthermore, the advertisements produced were of properties in Thorndon. Kate Sheppard may also be considered located in the Pipitea area.
The Tenancy Services market rent tool shows bond information for properties where bonds have been lodged in the six months being reported on in a particular area. For example, the tool displays different information for Thorndon and Pipitea. It is a useful guide but should not be used alone to determine market rent of any property. The lower, median, and upper quartile weekly rent figures in the data about each dwelling type are worked out from bonds lodged in the six-month period. The upper quartile figure is the weekly rent at 75% of all market rents when all are placed in order of value. This means that 25% of the rents in that area will be more than this figure.
The Tenancy Services market rent tool currently shows bonds listed between 1 January 2024 and 30 June 2024. The information currently shows the following information for upper quartile properties: AreaType of dwellingUpper quartile rent Thorndon3-bedroom apartmentNone listed Thorndon2-bedroom apartment$773 Thorndon3-bedroom house$985 Pipitea3-bedroom apartmentNone listed Pipitea2-bedroom apartment$950
The Tenancy Services tool provides very little information to compare this Kate Sheppard apartment and determine the likely market rent.
Ms Fox-Moore noted that these premises were advertised in February 2024 and originally the tenancy was to start in March, but the tenants negotiated an April start date. She claims that rents have declined since February and, therefore, the advertisements produced by the tenants are not indicative of a fair market rent when the tenancy agreement was signed.
After carefully considering all the available evidence, I find that there is simply not enough evidence to enable me to determine market rent for a three- bedroom apartment located in Pipitea/Thorndon comparable to this apartment when it was rented out. It follows that I am unable to determine whether the rent agreed in February 2024 for this apartment substantially exceeded market rent.
Furthermore, the fact that there were cleaning and maintenance issues with the premises is not a basis for a market rent review. The award of compensation for the failure to provide the premises in a reasonable state is the appropriate remedy to address those concerns.
For the reasons give, the claim for a rent reduction under s25 RTA must be dismissed.
As the tenants have substantially succeeded with their claims, they are entitled to suppression of their names and identifying details as requested and to reimbursement of the filing fee on the application.

Tenancy Tribunal case 4863165 — State of repair at Unit/Flat 6I, 42 Molesworth Street, Thorndon, Wellington

At a glance

Tenancy Tribunal case 4863165 — State of repair at Unit/Flat 6I, 42 Molesworth Street, Thorndon, Wellington

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord provide and maintain the premises in a reasonable state?

Should the rent be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord provide and maintain the premises in a reasonable state?

Should the rent be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions