What was Tenancy Tribunal case 4869802 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 4869802?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4869802?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4869802?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11203799-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4869802 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 4869802?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4869802?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4869802?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11203799-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4869802 — 14-day notice

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New Zealand Tenancy Tribunal Case 4869802 — 14-day notice | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants names and identifying details. The landlord’s application for suppression of his name and identifying details is dismissed for the

Reasons

set out in the decision.

Vikash Kumar must pay [The tenants] $3,833.36 immediately, calculated as set out in the table below: DescriptionLandlordTenant Compensation: Smoke alarm not working (rent rebate at $50.00 per week for the period 3 September 2023 to 15 March 2024 (27 weeks and 5 days) $1,385.73 Exemplary damages: Smoke Alarm breach- s45(1)(ba) $1,200.00 Compensation: Gas usage for drying lounge for 3 days $64.32 Compensation- Trees not trimmed down the driveway from 12/12/23 to 23/04/24 (19 weeks at $40 per week) $760.00 Compensation: Rubbish bin not repaired from 12/12/23 to 15/03/24 (13 weeks and 3 days at $30 per week) $402.87 Filing fee reimbursement $20.44 Total award $3,833.36 Total payable by Landlord to Tenant $3,833.36 Reasons:
Both parties attended the hearing. The landlord was accompanied by the Property Management Company that had managed the property during much of the tenancy. The Property Managers have asked for its name to not be recorded in this Order as it ceased managing the property. The landlord confirmed he has taken over the management of the property and the property managers are no longer his agent. He made a request to represent himself at the hearing. This request was granted. Background
The tenants rented the 4-bedroom property from the landlord through its property managers from 16 December 2022 to 22 April 2024.
The parties confirmed that, although the property was rented to the tenants by the property managers, the owner kept coming around to deal with repair and maintenance issues himself. The tenants say they got confused as sometimes they dealt with the owner and sometimes the property manager and the owner often organized contractors that turned up without the tenant’s knowledge or the property managers knowledge.
On 27 January 2023, the downstairs of the premise flooded because of the extreme weather event caused by Cyclone Gabrielle. The tenants say the bedrooms were upstairs, so not impacted, but the living room and kitchen were downstairs, and that area was badly impacted.
The parties also confirmed on 16 January 2024, there was a plumbing issue that caused further flooding downstairs.
The parties entered into an Agreement for the landlord to compensate the tenants for the loss of amenity, stress and inconvenience caused by these flooding events and the remediation of the damage caused by the flooding events. The landlord produced a signed copy of this Agreement and an email dated 20 March 2024, following the signing of the Agreement on 15 March 2024, that confirms the landlord paid for the following: a. $4,400.00 rent rebate for the period 27 January to 4 September 2024 (31 weeks and 3 days at $20 per day); b. $107.00 compensation for the electricity used by the landlord’s contractors from 26 to 30 April 2023; c. $$160.00 rent reduction for the period 14 to 21 February 2024 (8 days at $20 per day); d. $282.16 for the electricity used by the landlord’s contractors from 14 to 21 February 2024 (8 days); and e. Rent relief for the week ending 13 March 2024 at $1,100.00.
The landlord also confirmed it offered to pay an additional $20 per day if the tenants had to move into a motel during the remediation of the second flood and the tenants did not take up that offer.
The landlord asked the Tribunal to take into consideration the following when considering remedies to be awarded to the tenant: a. The tenants retained vacant possession of the house for 24 hours after the date they stopped paying rent to clean the property as their move out date had been wet and the house was muddy, and the tenants had been unable to clean properly until the next day. This caused the landlord to have to cancel the cleaners he had arranged to do a full clean for the new tenants coming into the property. He incurred this cost as he had to pay the full fee when he cancelled the cleaner; and b. The landlord produced a letter from his building contractor that states all the renovations of the ground floor of the premise were completed on 4 August 2023 and that he went again to seal a minor gap under the skirting on 4 September 2023 for 15 minutes. The landlord says he compensated the tenants at $20 per day for a full month where there was no loss of amenity, stress or inconvenience suffered as the major renovation work was completed on 4 August 2023.
The landlord acknowledges that he has not made claims for these concessions he has given the tenants freely but seeks recognition of these when I am setting the quantum of any further compensatory sums.
Text message from owner to tenant dated Sunday 3 September 2023- Contractor’s coming to fill gap in skirting and fixed the smoke alarms. The smoke alarms are not fitted that day. The landlord has a text to say the contractor came the next day for 15 minutes to be skirting. Did the landlord meet his s45(1)(b),(ba) and (bb) obligations to the tenants?
[The tenants] claim that the landlord has breached their obligations under section 45(1)(b), (bb) and (ba) of the Residential Tenancies Act 1986 (“RTA”).
Under section 45(1)(b) of the RTA, 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 section 45(1)(ba) of the RTA, a landlord must also comply with comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A, being the smoke alarm requirements set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 for all the s45(1) of the RTA breaches the tenants are claiming. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants.
In order to award exemplary damages, the Tribunal must be satisfied that the landlord committed the unlawful act intentionally, and it would be just to award exemplary damages, 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. Failure to maintain 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].
The tenants say the landlord has failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances.
These claims related to: a. Doors that had gaps and would not fully close so that they frequently opened of their own accord causing sleep disturbances and other stress and inconvenience to the tenants; b. Skirting boars that were installed after the floods that were half a centimetre shorter than the original skirting boards, causing the tenants a loss of satisfaction because aesthetically the new skirting boards were not as pleasing as the originals, and they had paid for the premises to be at the same aesthetic standard as it was when they first rented it; c. Broken rubbish bin that was not remedied straight away. The property inspection reports dated 12 December 2023 and 5 March 2024 record “the bracket for the pull-out rubbish bin drawer has broken and needs repair” and “the rubbish bin drawer has come away from the cabinet - needs to be re- secured, probably with longer/stronger screws”. The landlord confirmed this issue was fixed on 15 March 2024; d. Hedges and trees not trimmed regularly. The 12 December 2023 and 5 March 2024 property inspection reports both record “the trees and shrubs also need a trim back all around - especially along the edge of the driveway. I can arrange a quote for this if you'd like?” and “the trees and hedges around the house and driveway are due for a trim”. The landlord has proven he engaged a contractor to do this work, but it was not undertaken until just after the tenancy ended on 23 April 2024; e. A dishwasher that stopped working on 17 January 2024, was reported to the landlord on 2 February 2024, and repaired until 6 February 2024; and f. A toilet seat that was replaced at the start of the tenancy for which the screws underneath kept coming loose on a frequent basis.
The tenants were unable to provide the Tribunal with sufficient evidence of the following issues to satisfy their burden of proof on the balance of probabilities that these issues arose, they reported these issues on a specified date and the landlord did not remedy the issues in a reasonable timeframe, in all the circumstances, after they were raised: a. Doors that had gaps and would not fully close so that they frequently opened of their own accord causing sleep disturbances and other stress and inconvenience to the tenants; and b. Skirting boars that were installed after the floods that were half a centimetre shorter than the original skirting boards, causing the tenants a loss of satisfaction because aesthetically the new skirting boards were not as pleasing as the originals, and they had paid for the premises to be at the same aesthetic standard as it was when they first rented it.
The tenants have also not satisfied me that the dishwasher issue, reported on 2 February 2024, was not investigated, and repaired in a reasonable timeframe in all the circumstances when they acknowledged in an email on 6 February 2024 it was fixed, and they were happy with that. They also confirmed their daughter raised this issue on 2 February 2024 as the issue arose when they were overseas.
On balance, I am satisfied that the toilet seat coming lose was an ongoing issue throughout the tenancy and the tenants raised this issue at one property inspection. The 21 September 2023 property inspection report stats “toilet seat has come loose – needs reattachment/tightening”.
The parties acknowledge the landlord did come and tightened it once on an undefined date. The other property inspection reports do not record this as being an ongoing issue raised by the tenants and the property manager confirmed to the Tribunal, they always tighten toilet seats on the spot when they undertake inspections as it is something they can easily address and is not worth the cost of sending a contractor out to remedy.
In summary, I find the tenants have not proven the landlord breached his obligations to repair and maintain the toilet seat, the dishwasher, the doors, and the skirting boards in a reasonable condition in all the circumstances, and accordingly I dismiss the tenants’ claims for compensation for these issues.
The tenants have proven the broken rubbish bin was not remedied straight away as the property inspection reports dated 12 December 2023 and 5 March 2024 record “the bracket for the pull-out rubbish bin drawer has broken and needs repair” and “the rubbish bin drawer has come away from the cabinet - needs to be re-secured, probably with longer/stronger screws”. The landlord confirmed this issue was fixed on 15 March 2024. I award the tenants compensation for the loss of amenity of the bin and the stress and inconvenience of living with it broken and having to keep raising it at property inspections without it being remedied until 13 weeks and 3 days after it was first raised. I find that the tenants should be awarded compensation for this breach at $30.00 per week for 13 weeks and 3 days, being a total of $402.87.
The tenants have proven the hedges and trees not trimmed regularly. The 12 December 2023 and 5 March 2024 property inspection reports both record “the trees and shrubs also need a trim back all around - especially along the edge of the driveway. I can arrange a quote for this if you'd like?” and “the trees and hedges around the house and driveway are due for a trim”. The landlord has proven he engaged a contractor to do this work, but it was not undertaken until just after the tenancy ended on 23 April 2024. I award the tenants compensation for the stress and inconvenience of living with overgrown foliage down the driveway and having to keep raising it at property inspections without it being remedied until 19 weeks after it was first raised. I find that the tenants should be awarded compensation for this breach at $40.00 per week for 19 weeks, being a total of $760.00. Smoke alarms- breach of TA and breach of regulations
Section 45(1)(ba) of the RTA states the landlord “shall comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A”.
The tenants claim the rental premise had no working smoke alarms when the tenants moved in, and none were installed during the tenancy.
Fire and Emergency New Zealand (FENZ) website, www.fire.org, confirms both landlords and tenants take some responsible for smoke alarms as follows: a. Landlords must ensure smoke alarms: i. are working at the start of each new tenancy; ii. remain in working order during the tenancy; and iii. That are not working are replaced with photoelectric smoke alarms. b. Tenants must: i. not damage, remove, or disconnect a smoke alarm; ii. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and iii. let the landlord know if there are any problems with the smoke alarms as soon as possible.
I am satisfied that the tenants have proven that the landlord failed to ensure the rental premises were fitted with working smoke alarms that meet the regulatory requirements referred to in the RTA in that at least one alarm, and potentially up to three alarms located on the upstairs level of the premise were not working from 3 September 2023 (the tenants produced a text message reporting this issue to the landlord on this date) and 15 March 2024.
The tenants produced evidence they reported the smoke alarms to the landlord in a text message on 3 September 2023, at the property inspection on 21 September 2023, in an email on 29 January 2024 and again in an email on 13 March 2024 that confirms the alarms have not been working for over 6 months.
The property inspection report dated 21 September 2023 records “smoke alarm not working in the hallway”.
The property inspection reports dated 5 March 2023 and 12 December 2023 record “only one alarm upstairs- second one required at end of hallway” and “the property is currently not compliant as there is not a smoke alarm within 3m of each bedroom door”.
The landlord confirmed one smoke alarm was replaced on 15 March 2024 after he was first made aware of it not working via email from the tenants on 13 March 2024.
I find that the tenants should be awarded compensation for the breach of the landlord’s obligations to provide smoking smoke alarms for the period 3 September 2023 to 15 March 2024, being 27 weeks and 5 days, at $50.00 per week. I award total compensation of $1,385.73 for this breach.
I am also satisfied it would be just to require the landlord to pay a sum in exemplary damages as I find the breach to be intentional as the landlord and/or his agent was made aware of the breach on multiple occasions and was not remedied in a reasonable timeframe considering the seriousness of the breach and its potential impact on the tenants.
A maximum of $7,200.00 exemplary damages, as set out in Schedule 1A of the RTA is for all s45 of the RTA breaches and as such, the quantum ordered under this section will be set out at the end of the s45(1) of the RTA breach section of this order.

Did the landlord breach the healthy homes standards?

[The tenants] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating 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 commenced on 16 December 2021. The landlord had 90 days from this date to ensure the premise complied with all the healthy homes standards.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
The tenancy agreement records that the premise meets all the healthy homes standards, and the landlord produced a certificate of compliance at the hearing that also confirms the property meets all the standards.
The parties confirmed the premise has a 5.5kW gas heater in the main living room that is fixed and complies with the standards.
The issue the tenants explained to me was they were unable to use the gas heater as it ran out of gas after the tenants had been asked by the landlord to leave the heater on for 3 days to dry out a wall that needed repair after a guttering issue was found to have cause moisture in the wall when the contractors sent by the insurer investigated and assessed the damage post the flooding.
The landlord denied instructing the tenants to leave the gas heater on to dry out the wall.
I am satisfied the tenants have proven on the balance of probabilities that they did incur this cost because of having to dry out the wall prior to the plaster and paint work being undertaken and that it may have been the insurer’s contractors that made the request on his behalf rather than the landlord directly.
I find the landlord met his obligations to ensure the premise met the healthy homes standards but find he should compensate the tenants for the three days use of the gas as part of the remediation of the various leaks that occurred in the downstairs living area.
The London Power calculator states that one 45kg gas bottle should last for 6.25 days if a 5.5kW heater is left on all day and night. The tenants had two 45kg gas bottles they confirm they got full, never filled, and hardly used during the tenancy.
I have assessed the three days usage, for the purpose of assisting with the renovation works, based on the landlord’s invoice for $268.00 to fill both bottles at the start of the tenancy and the London Gas calculator. I award the tenant $64.32 compensation for three days gas usage calculated as follows: $268.00 to fill two 45 kg gas bottles. $268 divided by 12.5 days = $21.44 per day times 3 days =$64.32 Section 45 exemplary damage quantum
I am satisfied that it would be appropriate to award exemplary damages of $1,200.00 for the landlord’s two breaches of s45(1)(b) and one of s45(1)(ba) of the RTA breach, being one eighth of the maximum quantum available under this head of claim, because: a. the landlord failed to provide working and compliant smoke alarms and subjected the tenants to a level of risk that could have cost them their lives and intentionally failed to remedy two repair and maintenance issues after these were raised with the property manager and/or the owner and reported in property inspection reports; b. the tenants were subjected to a level of risk that could have cost them their lives and should have been able to rely on the landlord to meet its s45(1)(ba) obligations under the RTA and associated regulations and were caused stress and inconvenience by the s45(1)(b) breaches; c. It is in the interests of the tenants to receive exemplary damages for the stress, inconvenience and risk to their health and wellbeing they suffered because of these breaches; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide fully functioning and compliant smoke alarms to tenants, to record details about these accurately in a written tenancy agreement, and to remedy repair and maintenance issues in a timely manner in all the circumstances. Did the landlord breach the tenants’ quiet enjoyment of the premise?
[The tenants] claim the landlord has harassed them and breached their quiet enjoyment of the premise.
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants claimed on 26 April 2023, contractors arrived to install dehumidifiers and the tenants were not given no notice. The contractors just turned up.
The landlord says the insurer were arranging the contractors at that time and contractors were hard to get because of the extent of the flooding in the Auckland region so the landlord had no control over when these contractors were able to come, and he did not receive any notice from the insurer. The property manager also stated this property was one of the first to be repaired from the property manager portfolio and confirmed that insurers were addressing this issue with urgency, and that under the circumstances it was reasonable for contractors to deliver fans under urgency to dry the premise out.
The other issues raised were all to do with contractors disrupting the tenants’ quiet enjoyment when undertaking remedial work from the floods that the landlord proved he had compensated them for already.
The landlord reiterated that the major works finished on 4 August 2023 and the tenants were compensated to 4 September 2023 as they were threatening to go the Tribunal at that stage and that they have been compensated fairly for their loss of quiet enjoyment.
I find the landlord did not intentionally breach its requirement to give the tenants notice of the contractors dropping off fans as this was an emergency situation, the landlord’s insurer was trying to address under urgency and that the landlord has adequately compensated the tenants for the loss of amenity, stress, and inconvenience they suffered because of both floods.
I dismiss the tenants claims for compensation and exemplary damages as I am not satisfied the tenants have produced evidence sufficient to satisfy me on the balance of probabilities, they have suffered any loss of their quiet enjoyment they have not already received compensation for. Reimbursement of the filing fee
Because [The applicants] have substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
The tenants applied for non-publication of their names 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.
The tenants have substantially succeeded in this proceeding, and I do not consider publication is in the public interest or justified because of the tenants’ conduct or any other circumstances of the case.
Non-publication of the tenants’ names and identifying details are ordered.
The landlord has also requested his name be supressed. The tenants objected to his name being suppressed as they state his conduct was so appalling during the tenancy other tenants deserve to be warned about how he conducts himself.
The landlord claimed that publishing his name could have adverse impacts on him being able to gain employment in the property management sector in the future and sought name suppression on that basis. Although the landlord has taken steps to compensate the tenants for past s45(1) of the RTA breaches I am satisfied he did commit further breaches and consider that publication is in the public interest or is justified because of the landlord’s conduct in relation to his s45(1) of the RTA obligations.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants names and identifying details. The landlord’s application for suppression of his name and identifying details is dismissed for the

Reasons

set out in the decision.

Vikash Kumar must pay [The tenants] $3,833.36 immediately, calculated as set out in the table below: DescriptionLandlordTenant Compensation: Smoke alarm not working (rent rebate at $50.00 per week for the period 3 September 2023 to 15 March 2024 (27 weeks and 5 days) $1,385.73 Exemplary damages: Smoke Alarm breach- s45(1)(ba) $1,200.00 Compensation: Gas usage for drying lounge for 3 days $64.32 Compensation- Trees not trimmed down the driveway from 12/12/23 to 23/04/24 (19 weeks at $40 per week) $760.00 Compensation: Rubbish bin not repaired from 12/12/23 to 15/03/24 (13 weeks and 3 days at $30 per week) $402.87 Filing fee reimbursement $20.44 Total award $3,833.36 Total payable by Landlord to Tenant $3,833.36 Reasons:
Both parties attended the hearing. The landlord was accompanied by the Property Management Company that had managed the property during much of the tenancy. The Property Managers have asked for its name to not be recorded in this Order as it ceased managing the property. The landlord confirmed he has taken over the management of the property and the property managers are no longer his agent. He made a request to represent himself at the hearing. This request was granted. Background
The tenants rented the 4-bedroom property from the landlord through its property managers from 16 December 2022 to 22 April 2024.
The parties confirmed that, although the property was rented to the tenants by the property managers, the owner kept coming around to deal with repair and maintenance issues himself. The tenants say they got confused as sometimes they dealt with the owner and sometimes the property manager and the owner often organized contractors that turned up without the tenant’s knowledge or the property managers knowledge.
On 27 January 2023, the downstairs of the premise flooded because of the extreme weather event caused by Cyclone Gabrielle. The tenants say the bedrooms were upstairs, so not impacted, but the living room and kitchen were downstairs, and that area was badly impacted.
The parties also confirmed on 16 January 2024, there was a plumbing issue that caused further flooding downstairs.
The parties entered into an Agreement for the landlord to compensate the tenants for the loss of amenity, stress and inconvenience caused by these flooding events and the remediation of the damage caused by the flooding events. The landlord produced a signed copy of this Agreement and an email dated 20 March 2024, following the signing of the Agreement on 15 March 2024, that confirms the landlord paid for the following: a. $4,400.00 rent rebate for the period 27 January to 4 September 2024 (31 weeks and 3 days at $20 per day); b. $107.00 compensation for the electricity used by the landlord’s contractors from 26 to 30 April 2023; c. $$160.00 rent reduction for the period 14 to 21 February 2024 (8 days at $20 per day); d. $282.16 for the electricity used by the landlord’s contractors from 14 to 21 February 2024 (8 days); and e. Rent relief for the week ending 13 March 2024 at $1,100.00.
The landlord also confirmed it offered to pay an additional $20 per day if the tenants had to move into a motel during the remediation of the second flood and the tenants did not take up that offer.
The landlord asked the Tribunal to take into consideration the following when considering remedies to be awarded to the tenant: a. The tenants retained vacant possession of the house for 24 hours after the date they stopped paying rent to clean the property as their move out date had been wet and the house was muddy, and the tenants had been unable to clean properly until the next day. This caused the landlord to have to cancel the cleaners he had arranged to do a full clean for the new tenants coming into the property. He incurred this cost as he had to pay the full fee when he cancelled the cleaner; and b. The landlord produced a letter from his building contractor that states all the renovations of the ground floor of the premise were completed on 4 August 2023 and that he went again to seal a minor gap under the skirting on 4 September 2023 for 15 minutes. The landlord says he compensated the tenants at $20 per day for a full month where there was no loss of amenity, stress or inconvenience suffered as the major renovation work was completed on 4 August 2023.
The landlord acknowledges that he has not made claims for these concessions he has given the tenants freely but seeks recognition of these when I am setting the quantum of any further compensatory sums.
Text message from owner to tenant dated Sunday 3 September 2023- Contractor’s coming to fill gap in skirting and fixed the smoke alarms. The smoke alarms are not fitted that day. The landlord has a text to say the contractor came the next day for 15 minutes to be skirting. Did the landlord meet his s45(1)(b),(ba) and (bb) obligations to the tenants?
[The tenants] claim that the landlord has breached their obligations under section 45(1)(b), (bb) and (ba) of the Residential Tenancies Act 1986 (“RTA”).
Under section 45(1)(b) of the RTA, 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 section 45(1)(ba) of the RTA, a landlord must also comply with comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A, being the smoke alarm requirements set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 for all the s45(1) of the RTA breaches the tenants are claiming. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants.
In order to award exemplary damages, the Tribunal must be satisfied that the landlord committed the unlawful act intentionally, and it would be just to award exemplary damages, 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. Failure to maintain 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].
The tenants say the landlord has failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances.
These claims related to: a. Doors that had gaps and would not fully close so that they frequently opened of their own accord causing sleep disturbances and other stress and inconvenience to the tenants; b. Skirting boars that were installed after the floods that were half a centimetre shorter than the original skirting boards, causing the tenants a loss of satisfaction because aesthetically the new skirting boards were not as pleasing as the originals, and they had paid for the premises to be at the same aesthetic standard as it was when they first rented it; c. Broken rubbish bin that was not remedied straight away. The property inspection reports dated 12 December 2023 and 5 March 2024 record “the bracket for the pull-out rubbish bin drawer has broken and needs repair” and “the rubbish bin drawer has come away from the cabinet - needs to be re- secured, probably with longer/stronger screws”. The landlord confirmed this issue was fixed on 15 March 2024; d. Hedges and trees not trimmed regularly. The 12 December 2023 and 5 March 2024 property inspection reports both record “the trees and shrubs also need a trim back all around - especially along the edge of the driveway. I can arrange a quote for this if you'd like?” and “the trees and hedges around the house and driveway are due for a trim”. The landlord has proven he engaged a contractor to do this work, but it was not undertaken until just after the tenancy ended on 23 April 2024; e. A dishwasher that stopped working on 17 January 2024, was reported to the landlord on 2 February 2024, and repaired until 6 February 2024; and f. A toilet seat that was replaced at the start of the tenancy for which the screws underneath kept coming loose on a frequent basis.
The tenants were unable to provide the Tribunal with sufficient evidence of the following issues to satisfy their burden of proof on the balance of probabilities that these issues arose, they reported these issues on a specified date and the landlord did not remedy the issues in a reasonable timeframe, in all the circumstances, after they were raised: a. Doors that had gaps and would not fully close so that they frequently opened of their own accord causing sleep disturbances and other stress and inconvenience to the tenants; and b. Skirting boars that were installed after the floods that were half a centimetre shorter than the original skirting boards, causing the tenants a loss of satisfaction because aesthetically the new skirting boards were not as pleasing as the originals, and they had paid for the premises to be at the same aesthetic standard as it was when they first rented it.
The tenants have also not satisfied me that the dishwasher issue, reported on 2 February 2024, was not investigated, and repaired in a reasonable timeframe in all the circumstances when they acknowledged in an email on 6 February 2024 it was fixed, and they were happy with that. They also confirmed their daughter raised this issue on 2 February 2024 as the issue arose when they were overseas.
On balance, I am satisfied that the toilet seat coming lose was an ongoing issue throughout the tenancy and the tenants raised this issue at one property inspection. The 21 September 2023 property inspection report stats “toilet seat has come loose – needs reattachment/tightening”.
The parties acknowledge the landlord did come and tightened it once on an undefined date. The other property inspection reports do not record this as being an ongoing issue raised by the tenants and the property manager confirmed to the Tribunal, they always tighten toilet seats on the spot when they undertake inspections as it is something they can easily address and is not worth the cost of sending a contractor out to remedy.
In summary, I find the tenants have not proven the landlord breached his obligations to repair and maintain the toilet seat, the dishwasher, the doors, and the skirting boards in a reasonable condition in all the circumstances, and accordingly I dismiss the tenants’ claims for compensation for these issues.
The tenants have proven the broken rubbish bin was not remedied straight away as the property inspection reports dated 12 December 2023 and 5 March 2024 record “the bracket for the pull-out rubbish bin drawer has broken and needs repair” and “the rubbish bin drawer has come away from the cabinet - needs to be re-secured, probably with longer/stronger screws”. The landlord confirmed this issue was fixed on 15 March 2024. I award the tenants compensation for the loss of amenity of the bin and the stress and inconvenience of living with it broken and having to keep raising it at property inspections without it being remedied until 13 weeks and 3 days after it was first raised. I find that the tenants should be awarded compensation for this breach at $30.00 per week for 13 weeks and 3 days, being a total of $402.87.
The tenants have proven the hedges and trees not trimmed regularly. The 12 December 2023 and 5 March 2024 property inspection reports both record “the trees and shrubs also need a trim back all around - especially along the edge of the driveway. I can arrange a quote for this if you'd like?” and “the trees and hedges around the house and driveway are due for a trim”. The landlord has proven he engaged a contractor to do this work, but it was not undertaken until just after the tenancy ended on 23 April 2024. I award the tenants compensation for the stress and inconvenience of living with overgrown foliage down the driveway and having to keep raising it at property inspections without it being remedied until 19 weeks after it was first raised. I find that the tenants should be awarded compensation for this breach at $40.00 per week for 19 weeks, being a total of $760.00. Smoke alarms- breach of TA and breach of regulations
Section 45(1)(ba) of the RTA states the landlord “shall comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A”.
The tenants claim the rental premise had no working smoke alarms when the tenants moved in, and none were installed during the tenancy.
Fire and Emergency New Zealand (FENZ) website, www.fire.org, confirms both landlords and tenants take some responsible for smoke alarms as follows: a. Landlords must ensure smoke alarms: i. are working at the start of each new tenancy; ii. remain in working order during the tenancy; and iii. That are not working are replaced with photoelectric smoke alarms. b. Tenants must: i. not damage, remove, or disconnect a smoke alarm; ii. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and iii. let the landlord know if there are any problems with the smoke alarms as soon as possible.
I am satisfied that the tenants have proven that the landlord failed to ensure the rental premises were fitted with working smoke alarms that meet the regulatory requirements referred to in the RTA in that at least one alarm, and potentially up to three alarms located on the upstairs level of the premise were not working from 3 September 2023 (the tenants produced a text message reporting this issue to the landlord on this date) and 15 March 2024.
The tenants produced evidence they reported the smoke alarms to the landlord in a text message on 3 September 2023, at the property inspection on 21 September 2023, in an email on 29 January 2024 and again in an email on 13 March 2024 that confirms the alarms have not been working for over 6 months.
The property inspection report dated 21 September 2023 records “smoke alarm not working in the hallway”.
The property inspection reports dated 5 March 2023 and 12 December 2023 record “only one alarm upstairs- second one required at end of hallway” and “the property is currently not compliant as there is not a smoke alarm within 3m of each bedroom door”.
The landlord confirmed one smoke alarm was replaced on 15 March 2024 after he was first made aware of it not working via email from the tenants on 13 March 2024.
I find that the tenants should be awarded compensation for the breach of the landlord’s obligations to provide smoking smoke alarms for the period 3 September 2023 to 15 March 2024, being 27 weeks and 5 days, at $50.00 per week. I award total compensation of $1,385.73 for this breach.
I am also satisfied it would be just to require the landlord to pay a sum in exemplary damages as I find the breach to be intentional as the landlord and/or his agent was made aware of the breach on multiple occasions and was not remedied in a reasonable timeframe considering the seriousness of the breach and its potential impact on the tenants.
A maximum of $7,200.00 exemplary damages, as set out in Schedule 1A of the RTA is for all s45 of the RTA breaches and as such, the quantum ordered under this section will be set out at the end of the s45(1) of the RTA breach section of this order.

Did the landlord breach the healthy homes standards?

[The tenants] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating 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 commenced on 16 December 2021. The landlord had 90 days from this date to ensure the premise complied with all the healthy homes standards.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
The tenancy agreement records that the premise meets all the healthy homes standards, and the landlord produced a certificate of compliance at the hearing that also confirms the property meets all the standards.
The parties confirmed the premise has a 5.5kW gas heater in the main living room that is fixed and complies with the standards.
The issue the tenants explained to me was they were unable to use the gas heater as it ran out of gas after the tenants had been asked by the landlord to leave the heater on for 3 days to dry out a wall that needed repair after a guttering issue was found to have cause moisture in the wall when the contractors sent by the insurer investigated and assessed the damage post the flooding.
The landlord denied instructing the tenants to leave the gas heater on to dry out the wall.
I am satisfied the tenants have proven on the balance of probabilities that they did incur this cost because of having to dry out the wall prior to the plaster and paint work being undertaken and that it may have been the insurer’s contractors that made the request on his behalf rather than the landlord directly.
I find the landlord met his obligations to ensure the premise met the healthy homes standards but find he should compensate the tenants for the three days use of the gas as part of the remediation of the various leaks that occurred in the downstairs living area.
The London Power calculator states that one 45kg gas bottle should last for 6.25 days if a 5.5kW heater is left on all day and night. The tenants had two 45kg gas bottles they confirm they got full, never filled, and hardly used during the tenancy.
I have assessed the three days usage, for the purpose of assisting with the renovation works, based on the landlord’s invoice for $268.00 to fill both bottles at the start of the tenancy and the London Gas calculator. I award the tenant $64.32 compensation for three days gas usage calculated as follows: $268.00 to fill two 45 kg gas bottles. $268 divided by 12.5 days = $21.44 per day times 3 days =$64.32 Section 45 exemplary damage quantum
I am satisfied that it would be appropriate to award exemplary damages of $1,200.00 for the landlord’s two breaches of s45(1)(b) and one of s45(1)(ba) of the RTA breach, being one eighth of the maximum quantum available under this head of claim, because: a. the landlord failed to provide working and compliant smoke alarms and subjected the tenants to a level of risk that could have cost them their lives and intentionally failed to remedy two repair and maintenance issues after these were raised with the property manager and/or the owner and reported in property inspection reports; b. the tenants were subjected to a level of risk that could have cost them their lives and should have been able to rely on the landlord to meet its s45(1)(ba) obligations under the RTA and associated regulations and were caused stress and inconvenience by the s45(1)(b) breaches; c. It is in the interests of the tenants to receive exemplary damages for the stress, inconvenience and risk to their health and wellbeing they suffered because of these breaches; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide fully functioning and compliant smoke alarms to tenants, to record details about these accurately in a written tenancy agreement, and to remedy repair and maintenance issues in a timely manner in all the circumstances. Did the landlord breach the tenants’ quiet enjoyment of the premise?
[The tenants] claim the landlord has harassed them and breached their quiet enjoyment of the premise.
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants claimed on 26 April 2023, contractors arrived to install dehumidifiers and the tenants were not given no notice. The contractors just turned up.
The landlord says the insurer were arranging the contractors at that time and contractors were hard to get because of the extent of the flooding in the Auckland region so the landlord had no control over when these contractors were able to come, and he did not receive any notice from the insurer. The property manager also stated this property was one of the first to be repaired from the property manager portfolio and confirmed that insurers were addressing this issue with urgency, and that under the circumstances it was reasonable for contractors to deliver fans under urgency to dry the premise out.
The other issues raised were all to do with contractors disrupting the tenants’ quiet enjoyment when undertaking remedial work from the floods that the landlord proved he had compensated them for already.
The landlord reiterated that the major works finished on 4 August 2023 and the tenants were compensated to 4 September 2023 as they were threatening to go the Tribunal at that stage and that they have been compensated fairly for their loss of quiet enjoyment.
I find the landlord did not intentionally breach its requirement to give the tenants notice of the contractors dropping off fans as this was an emergency situation, the landlord’s insurer was trying to address under urgency and that the landlord has adequately compensated the tenants for the loss of amenity, stress, and inconvenience they suffered because of both floods.
I dismiss the tenants claims for compensation and exemplary damages as I am not satisfied the tenants have produced evidence sufficient to satisfy me on the balance of probabilities, they have suffered any loss of their quiet enjoyment they have not already received compensation for. Reimbursement of the filing fee
Because [The applicants] have substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
The tenants applied for non-publication of their names 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.
The tenants have substantially succeeded in this proceeding, and I do not consider publication is in the public interest or justified because of the tenants’ conduct or any other circumstances of the case.
Non-publication of the tenants’ names and identifying details are ordered.
The landlord has also requested his name be supressed. The tenants objected to his name being suppressed as they state his conduct was so appalling during the tenancy other tenants deserve to be warned about how he conducts himself.
The landlord claimed that publishing his name could have adverse impacts on him being able to gain employment in the property management sector in the future and sought name suppression on that basis. Although the landlord has taken steps to compensate the tenants for past s45(1) of the RTA breaches I am satisfied he did commit further breaches and consider that publication is in the public interest or is justified because of the landlord’s conduct in relation to his s45(1) of the RTA obligations.

Tenancy Tribunal case 4869802 — 14-day notice

Tenancy Tribunal case 4869802 — 14-day notice

Order

Reasons

Did the landlord breach the healthy homes standards?

Order

Reasons

Did the landlord breach the healthy homes standards?